IN THE UNITED STATES DISTRICT COURT - .- 
FOR THE DlSTRICT OF COLUMBLA 
ELOUISE PEPION COBELL, et al., 
Plaintiffs, 
1 
) 
1 
) 
V. 
GALE A. NORTON, Secretary of the 
Interior, et al., 
1 
) 
) 
) 
1 
1 
Defendants. 
INTERIOR DEFENDANTS' REPLY 
IN SUPPORT OF MOTION TO REQUIRE PLAINTIFFS' COMPLIANCE 
WITH COURT'S ORDERS CONCERNING "ATTACHMENT C" 
The seal on "Attachment C" and its privileged status entitle the document to protection from 
public disclosure. The Court should reject Plaintiffs' assertion that, despite the Court's rulings, they may 
continue publicizing references to Attachment C that have becn stricken from the record in this case, 
and grant Interior Defendants' May 1,2003 motion for an order requiring Plaintiffs to (1) remove from 
their website (Indiantrust.com) all references to "Attachment C" that are covered by the Court's 
October 18,2002 Order and the Court's April 11,2003 Memorandum Opinion and accompanying 
Order of the same date; and (2) return to Defendants ail copies of Attachment C in their possession or 
control.' 
Plaintiffs moved for an extension of time to respond to this motion, requesting until "14 days 
after proposed findings and conclusions are due in Trial 1.5." Plaintiffs' Motion for Enlargement of 
Time to File Opposition to Interior Defendants' Motion and Memorandum to Require Plaintiffs [sic] 
Compliance with Court's Orders Concerning "Attachment C" at 1 (May 15,2003). Interior 
Defendants opposed Plaintiffs' motion on May 19, 2003, and as of this date the Court has not ruled on 
that motion. 
" . * 
- v i ~ 1 TT i + t r -r 1 
Fi '?, I*: c y f i . 
1 &jg 22 F[f 5: 25 
f.;;I)'irj i;h i ilid 
CLEF;.:; 
Case No. 1:96CVO1285 
(Judge Lamberth) Plaintiffs, in short, take the unsupportable position that even after the Court orders them to 
"protect the seal" on a document, orders them not to disclose information contained in the document 
and orders references to the document stricken from the record, they nevertheless niay publicize 
stricken documents and stricken references to that sealed document. Such actions are not only 
anathema to protecting the seal and honoring the privilege on a document, but undemiine the Court's 
orders and its authority. The Court specifically held that "plaintiffs have failed to demonstrate that their 
need for the information [in Attachment C] outweighs the interest of defendants in preventing 
disclosure of the information." Memorandum Opinion at 6 (April 1 1,2003) (emphasis added). 
Defendants' present motion is aimed at preventing fixther disclosure of the information in Attachment C. 
Although the Court has ruled that Attachment C is protected by the deliberative process 
privilege and may not be disclosed, Plaintiffs have simply refused to comply with that ruling and are now 
trying to reargue that issue. They seek to render the Court's privilege ruling meaningless by arguing that 
the Court's order is only relevant to the documents actually present in the Court's docketed record in 
this case and not to electronic copies of those documents in their possession and on their website. 
Opposition at 4-5 (arguing Court's order "address[es] matters solely on the Court record and mandate 
nothing in regard to material on any website" (emphasis in original)). Plaintiffs' argument - if adopted by 
this Court - would lead to the absurd result that the parties in this case could publicize documents that 
reference the content of other Court-sealed records. 
Further, the First Amendment - contrary to Plaintiffs' bald contention, Opposition at 4 - is not 
Seattle Times v. Rhinehart, 467 U.S. 20, 32 (1984). implicated by their wrongful publications. 
"A litigant has no First Amendment right of access to information made available only for purposes of 
- 2 - Plaintiffs urge the Court to allow them to continue to publicize sealed andor trying his suit." 
stricken references to Attachment C because the web-posted documents arc "in the public record." 
Opposition at I, 4. The Plaintiffs' documents - not Attachment C - are in the public record because 
Plaintiffs' blatantly and repeatedly have refused to protect the seal on Attachment C, first in violation of 
the Court's October 18,2002 Order and now in violation of the Court's Memorandum Opinion and 
separate Order of April 11,2003. See Defendants' Motion at 2-3. Courts will protect the seal on 
privileged documents by removing them fiom the public domain, even where such documents are 
inadvertentjy made public. United States v. Visa U.S.A., No. 98 CIV 7076, 2000 WL 1682753, at 
* 1 (S.D.N.Y. Nov. 9,2000) (inadvertent posting of antitrust defendant's privileged documents on 
government's website cured by ordering third parties who downloaded copies to return or destroy 
copies and "any other documents reflecting the confidential information contained therein"). 
Plaintiffs should not be rewarded for attempting to vitiate the effect of the Court's April 11, 
Ginther v. O'Connell, 791 F.2d 11 51, 1154 n.2 (5th Cir. 1986).2 They argue that 2003 Order. 
the news reports and unsealed papers about the incidents surrounding Attachment C reveal the 
document's content. Opposition at 3 . The Court - in its Memorandum Opinion - implicitly disagrees. 
- See Memorandum Opinion at 5 (refraining fiom discussing content of Attachment C because electing to 
''maintain the seal"). Plaintiffs also argue that the August 8, 2002 report of the former Court Monitor 
reveals the document's content and supports the propriety of Plaintiffs' disclosures. Id. at 2-4. The 
In Ginther, the Fifth Circuit found no abuse of discretion in the district court's granting a 
protective order compelling return of privileged documents. The offending party had "incorporated 
privileged documents into pleadings filed as part of a public record, and disseminated copies to other 
counsel occupying an adverse position to the [bankruptcy] Trustee. The district court was astonished, . 
. . observing that 'we certainly have a question of contempt of this court."' 791 F.2d at 1 154 n. 2 
(citations omitted). 
- 3 - illogic of the argument is apparent: the report was one of the primary bases of the Court's decisions 
Memorandum Opinion at 2 and orders to protect Attachment C's seal and forbid its disclosure. 
(April 11, 2003). 
The Court has issued successive rulings that support Defendants' position on this motion and 
that should have made this motion unnecessary. Unfortunately, this motion and the requested order are 
needed to stop Plaintiffs from continuing to flout the Court's orders. 
For these reasons and those expressed in Defendants' motion and initial supporting 
memorandum, Interior Defendants' motion should be granted. 
Respectfully submitted, August 22,2003 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFEK 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
w D . Bar 
Eid; 
No. 
P. SPOONER 
261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
JOHN R. KRESSE 
Trial Attorney 
D.C. Bar No. 430094 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 5 14-7 194 
- 4 - CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on August 22,2003 I served the foregoing Interior 
Defendants’ Reply in Support of Motion to Require Piaint@s’ Compliance with Court’s Orders 
Concerning “Attachment C” by facsimile in accordance with their written request of October 3 1, 
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 5941 7 
(406) 338-7530 
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, Esy 
1 100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530