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IN THE UNITED STATES DISTRICT CO~JRT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL,etaL,	)
		)
	Plaintiffs, -	)
		)
	v.	)	Case No. I :96CV01285
)	(Judge Lamberth)
GALE A.NORTON, Secretary of the Interior, ~i~L)
		)
	Defendants.	)
_________________________________________________________________________ )
INTERIOR DEFENDANTS' OPPOSITION TO PLAINTIFFS'
EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER
	Pursuant to Rule 65 of the Federal Rules of Civil Procedure and Local Civil Rule 65.1,
Interior Defendants respectfully submit the following opposition to plaintiffs' Emergency Motion
for Temporary Restraing Order ("TRO Motion").
Plaintiffs' TRO Motion Is Wholly Without Merit and Should Be Denied Because
the Deputy Secretary Directed That the Subject Trust Records Not Be Transferred
to Lee's Summit On the Day Before the TRO Motion Was Filed and, Therefore,
Plaintiffs Cannot Establish Either a Substantial Likelihood of Success on the
Merits or Any Potential for "Irreparable Injury"
	In considering whether to grant an application for a temporary restraining order or a
preliminary injunction, this Court must examine (1) whether there is a substantial likelihood that
the plaintiff would succeed on the merits, (2) whether the plaintiff would suffer irreparable injury
if the injunctive relief is denied, (3) whether the granting of injunctive relief would substantially
injure the other party, and (4) whether the public interest would be served by the granting of the
injunctive relief ~g,, Davenoort v. International Brotherhood of Teamsters. AFL-CIO, 166 F.3d
356, 360-61 (D.C. Cir. 1999) (citing Serono Laboratories. Inc. v. Shalala, 158 F.3d 1313, 1317-
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18 (D.C. Cir. 1998)); Kudiodi v. Wells Fargo Bank 181 F. Supp. 2d 1, 2 note 2 (D.D.C. 2001)
(application for temporary restraining order would be denied when plaintiffs failed to show
substantial like1ihoo~I of prevailing on merits or irreparable harm).
	In their TRO Motion, plaintiffs seek an order directing the Interior Department to "take
no action to transfer or relocate any trust records containing any individual Indian trust data..
without prior written approval of the Special Master." Attachment B, page 7 (proposed order
accompanying TRO Motion). Plaintiffs cannot satisfy their substantial burden to establish
entitlement to this order, however, because the undeniable facts confirm that Interior has no
present plan to transfer or relocate any of the records described in the TRO Motion.
	Defendant's counsel first became aware that plaintiffs were contemplating filing the TRO
Motion when counsel for plaintiffs, Mr. Keith Harper, called counsel for defendants, Ms. Sandra
Spooner, at approximately 3:00 p.m. on the afternoon of April 17, 2002. Upon being advked of
the substance of the contemplated motion, Ms. Spooner informed Mr. Harper that the motion was
unnecessary because the Interior Department's Deputy Secretary had already issued a directive to
the Special Trustee and to the Assistant Secretary for Indian Affairs, dated April 16, 2002, which
provided, among other things, that "[tjhe movement of records between BIA locations, OST
locations and Lee's Summit is to be suspended immediately." Attachment A, page 3. Ms.
Spooner further advised Mr. Harper that she would attempt to obtain and consider providing him
with a copy of the Deputy Secretary's dircctive, and she did so in a letter transmitted by facsimile
to Mr. Harper. Attachment A.
	Ms. Spooner's letter to Mr. Harper was transmitted between 5:08 p.m. and 5:12 p.m.,
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Attachment A, page 5,' and in addition to providing Mr. Harper with a copy of the Deputy
Secretary's directive, she further stated:
	In your telephone call this afternoon, you indicated that
plaintiffs are planning to seek a court order preventing the Lee's
Sumnjit move. In view of the Deputy Secretary's instructions, it
would appear that any such motion would be unfounded. If,
however, you continue to have concerns, I remain available to
discuss them with you.
Attachment A, page 1. Despite this offer, defendants' counsel heard nothing further from
plaintiffs's counsel until they transmitted the TRO Motion by facsimile several hours later, some
time after 7:30 p.m. Attachment B.2
	At the very least, plaintiffs' TRO Motion should be summarily denied because plaintiffs
cannot demonstrate either a substantial likelihood of prevailing on merits or the potential for
ineparable harm. While the only concern of the TRO motion is the contemplated movement of
trust records to Lee's Summit, Missouri, the Denuty Secretary's directive confirms that the
movement of trust records to Lee's Summit will not take place. The directive further confirms
that the Office of the Secretary is in consultation with the Special Master regarding the records
program and concludes by stating:
	Given the historical concerns about records retention and
	protection, I believe that it is imperative that we be extremely
	careful to ensure trust records are protected and preserved. I want
	At that time, a copy of Ms. Spooner's letter to Mr. Harper was also transmitted by
facsimile to the Special Master.
	2 Plaintiffs' counsel's facsimile header displays Greenwich Mean Time and shows a
transmission beginning at "23:33:19 (GMT)"; this corresponds to 7:33 p.m. (Eastern Daylight
Time). Attachment B, page 1. This header is consistent with the Justice Department facsimile
journal, which shows that the document was received at 7:43 p.m. (Eastern Daylight Time).
Attachment C (facsimile machine journal, redacted to delete entries for other transmissions).
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to make sure that the Special Master is pronerly and timely
informed and that he has every oPportunitY to resolve concerns
orior to the Deoartment taking irreversible actions.
Attachment A, page 4 (emphasis added).
	PlaintifCs TR.Q Motion sets forth no factual basis for this Court to disregard the Deputy
Sccretary's directive. Indeed, the TRO Motion states nothina regarding the Deputy Secretary's
directive, which plaintiffst counsel apparently possessed prior to filing the TRO Motion.3
Planitiffs' TRO Motion wholly fails to satisfy the legal burden required for this Court to grant the
extraordinary relief sought in its motion, and in light of the Deputy Secretary's directive, which
plaintiffs have chosen to ignore for obvious reasons, the Court should summarily deny plaintiffst
TRO Motion.
Conclusion
	For the foregoing reasons, we respectfully request that the Court deny plaintiffs' TRO
Motion.
	Based upon materials served upon defendants' counsel, the TRO Motion
apparently fails to comply with Local Civil Rule 65.1(a) because, among other things, it was not
"accompanied by a certificate of counsel ... stating (I) that actual notice of the time of making
the application. . . have been furnished to the adverse p~y... ." Based upon the substance of
the conversation between Mr. Harper and Ms. Spooner on the afternoon of April 17, 2002,
however, the undersigned counsel understands that at that time, plaintiffs had not yet filed the
TRO Motion.
	Although the TRO Motion states that counsel for the parties met and conferred prior to
the filing of plaintiffs' motion, TRO Motion, page 3, note 5, the only conference between counsel
was the telephone call from Mr. Harper nrior to his being provided with the Deputy Secretai-v's
directive. There was no subsequent conference regarding the TRO Motion, and this presumably
provides the reason for plaintiffs' vague assertion that "it is fair to say that defendants do not
consent [to] this motion." Id.
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Respectfrlly submitted,
ROBERT McCALLUM, JR.
Assistant Attorney General
STUART E. SCHIFFER
Deputy Assistant Attorney General
J.	CHRISTOPHER KOHN
Director
SANDRA P. SPOONER
Deputy Director
JOHN T. STEMPLEWICZ
Senior Trial Attorney
JOHN WARSHAWSKY
Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
April 18, 2002
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