IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
____________________________________
) 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
GALE A. NORTON, Secretary of 
the Interior, et al., 
) 
) 
)
)
)
)
) No. 1:96CV01285 
(Judge Lamberth) 
Defendants. 
)
) 
DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO RECONSIDER 
THE OCTOBER 22, 2004 MEMORANDUM OPINION 
Shorn of Plaintiffs' name-calling, Plaintiffs' Opposition to Defendants' Motion to 
Reconsider the October 22, 2004 Memorandum Opinion ("Opposition"), confirms that the 
statements regarding "retaliation" that Defendants ask the Court to reconsider were not supported 
by evidence before the Court.1 In their Opposition, Plaintiffs do not point to any information that 
was not already discussed in Defendants' Motion.2 
1/ Plaintiffs seek to turn the burden of proof on its head and argue that after Plaintiffs claimed 
retaliation by Interior, Defendants somehow then assumed the burden to prove that no such 
retaliation had occurred. Opposition at 2, 8, 9 n.11. The Court of Appeals recently confirmed 
that such a view is untenable. See Cobell v. Norton, 391 F.3d 251, 259 (D.C. Cir. 2004). 
2/ The only possible exception is a reference in the Opposition to a June 2004 Inspector General 
Report. Opposition at 4 n.5. It is difficult to understand how a report that was issued four 
months before the alleged retaliation took place, which does not mention or discuss any matter 
related to Cobell, and which relates primarily to events that occurred at Interior before Secretary 
Norton even took office, see U.S. Department of the Interior, Office of Inspector General, June 
2004 "Report on Evaluation of Conduct and Discipline," No. E-EV-MOA-0068-2002, at 1 
("Although many, if not most, of our findings pre-dated your tenure as Secretary . . . .") (attached 
as Exhibit 1 to the Opposition and available at http://www.oig.doi.gov), could possibly provide 
support. Indeed, Plaintiffs make no such claim, but rather simply attack Defendants for not 
"addressing" this Report in the Motion. Opposition at 4 n.5.
Plaintiffs do not address in their Opposition the discussion, Defendants' Motion at 4-10, 
about the possible interpretations of the Court's September 29 Order immediately after that Order 
was issued and before the Court clarified its meaning.3 As to the factual statements in the Court's 
October 22 Memorandum Opinion regarding Defendants' actions, Plaintiffs' Opposition does not 
support the absolute statements made in the Court's Opinion, but rather attempts to show that 
more qualified pronouncements would have been justified. For example, with respect to the 
Court's statements that the BIA was entirely shut down and field offices were closed, Cobell v. 
Norton, 224 F.R.D. 266, 270 (D.D.C. 2004), Plaintiffs do not try to show that this was true. 
Instead, they seek to show that the Court would have been justified in stating that immediately 
after the September 29 Order banning certain communications was issued, communications were 
indeed restricted – perhaps overly so for a few days after the Court clarified the meaning of its 
September 29 Order on October 1 – at three BIA field offices. Opposition at 6-7.4 
3/ Perhaps Plaintiffs were attempting to fashion some such discussion in the paragraphs on page 5 
of their Opposition, but if so, their argument is difficult to discern. 
4/ Plaintiffs also suggest that they would have been able to provide a few additional examples 
where communications were restricted, but the witnesses wished to remain anonymous, 
notwithstanding the direction from the Court to identify them, because they "had concerns about 
retribution." Opposition at 8 n.10. As the Court told Plaintiffs' counsel, Defendants cannot be 
expected to investigate and refute such evanescent claims. See October 6, 2004, Tr. at 18:1-2 (if 
Interior is not given the names of those complaining, "[h]ow does that allow the defendants to 
contest the basic information?"); id. at 20:9-11 ("You can provide their names and affidavits to 
the defendants, and then they can quit shadow boxing and get the true facts."). In any event, 
Plaintiffs do not claim that these anonymous individuals would be able to support the statements 
that the BIA was shut down and field offices were closed. 
2
With respect to language in the Court's Opinion that all live telephone operators were replaced 
with recordings, 224 F.R.D. at 270, Plaintiffs refer to this statement as a "strawman argument" 
and "immaterial." Opposition at 8 n.11. In the end, they merely restate the information 
discussed in Defendants' Motion (at 14-15) regarding the single instance when a recording may 
have been posted at the Anadarko agency. See id. 
Plaintiffs also do not address the opinion's statement that "in numerous cases, [employees 
told] the Indian beneficiaries that their checks were being withheld as a direct result of this 
Court's Order." 224 F.R.D. at 270. As discussed in Defendants' Motion, Plaintiffs had only 
provided one instance where any such thing may have occurred, and even if true, checks were not 
sent out by the local employee who may have made such a statement in error. Motion at 17-18. 
With regard to the Opinion's statement that "[t]he entire process by which payments are 
made to IIM account holders from lease revenues, royalties, and so forth was similarly shut 
down," 224 F.R.D. at 270, Plaintiffs do not try to show that this was correct. They merely 
engage in a statistical sideshow to try to demonstrate that in the three business days after the 
September 29 Order was issued, a lower number of checks than usual were issued.5 Plaintiffs 
arbitrarily focus on three-day periods. Opposition at 13-15. Plaintiffs' focus on the first three 
days of October 2004, as being the low point for the two-month period, which Defendants 
acknowledged, Motion at 16, when an average of 254 checks went out each day. However, 
5/ Plaintiffs also unaccountably attack the Declaration of Robert Winter as "evidentiarily 
incompetent" because he attested that the information he provided was true and correct to the 
best of his knowledge, information and belief. Opposition at 2 n.3. The Court of Appeals 
already rejected this argument. Cobell, 391 F.3d at 260. 
3
looking at the first four days of October 2004, Interior issued an average of 521 checks,6 totaling 
415 (24.9%) more checks, worth $459,016.91 (58.4%) more, than in 2003. They ignore the fact 
that almost ten times more checks were issued on September 30, 2004 (the day Interior allegedly 
ordered checks stopped) (3,100 to 334), worth $199,471.74 more, than on that date in 2003. 
They blame the alleged stoppage on Special Trustee Ross Swimmer's September 30, 2004 
email (Plaintiffs' Exhibit 7), which shows it was sent at 7:54 a.m. and forwarded at 8:04 a.m. But 
Plaintiffs' theory cannot be reconciled with the fact that on September 30 3,100 checks, worth 
almost half a million dollars, went out. In fact, the checks were never stopped. Beginning with 
September 30, on the first five business days after the Court's September 29, 2004 order, Interior 
issued 3,181 (158.9%) more checks, worth $658,488.65 (60.8%) more, than during the same 
period in 2003. 
In short, no checks were withheld as retaliation for the Court's order. Plaintiffs do not, 
and cannot, point to a single example where a trust check was withheld. 
As Defendants' Motion established – and Plaintiffs' Opposition confirms – Defendants 
did not retaliate against anyone as a result of the Court's September 29 Order.7 The Opinion's 
6/ Two four-day periods in 2004 and 2003 featured lower average daily check totals, including 
the second through fifth business days of September 2004, which averaged only 349 checks, and 
those same days in 2003, which averaged 397 checks. 
7/ Plaintiffs' irrelevant assertion that Interior has retaliated against other individuals earlier in this 
case, Opposition at 3, is untrue and vigorously disputed by Interior. There is no evidence of a 
single instance of retaliation related to this litigation. Particularly disturbing, however, is 
Plaintiffs' unsupported assertion that Defendants and their counsel "orchestrated" a "vicious 
personal attack" on the Court. Id. at 3 n.4. Plaintiffs' counsel's malicious accusation that 
Defendants and their counsel "aided and abetted" the publication of Professor Pierce's recent 
article critical of the Court, id., is made without a shred of evidence. 
4
statements to the contrary are not supported by evidence and thus justice requires that the Court 
reconsider its October 22, 2004 Memorandum Opinion. 
For these reasons, and for the reasons in Defendants' Motion to Reconsider, the Motion 
should be granted. 
Dated: January 18, 2005 
CONCLUSION 
Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
/s/ Sandra P. Spooner 
SANDRA P. SPOONER 
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) 514-7194 
5
CERTIFICATE OF SERVICE 
I hereby certify that, on January 18, 2005 the foregoing Defendants' Reply in Support of 
Motion to Reconsider The October 22, 2004 Memorandum Opinion was served by Electronic 
Case Filing, and on the following who is not registered for Electronic Case Filing, by facsimile: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
Fax (406) 338-7530 
/s/ Kevin P. Kingston 
Kevin P. Kingston