<< COB0000001 >>
IN THE UNITED STATES DISTRICT COURT
FOR TIlE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL et al	)
		)
	Plaintiffs,	)
		)
	v.	)	Case No. l:96CV01285
)	(Judge Lamberth)
GALE A: NORTON, Secretary of the Interior, ~ at,)
		)
	Defendants.	)
___________________________________________________________________________________ )
INTERIOR DEFENDANTS' OPPOSITION TO PLAINTIFFS'
APPLICATION FOR EXTENSION OF 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' Application for
Extension of Temporary Restraing Order ("TRO Motion").
I.	The Current TRO is Contrary to the Public Interest Because It is
Overly Broad and Prevents the Interior Department From
Conductina Routine and Necessary Business
	In our original opposition to plaintiffs' emergency motion for a TRO, Interior Defendants
explained that the entry of a TRO was unnecessary because, among other things, the Interior
Department's Deputy Secretary had already directed that the Office of the Special Trustee (OST)
and the Bureau of Indian Affairs (BIA) were to maintain tribal and individual records in their
current geographical locations, pending further direction from the Secretary. Interior Defendants'
Opposition to Plaintiffs' Emergency Motion for Temporary Restraining Order at 2-4 and
Attachment A (filed Apr. 18, 2002). The Court rejected our position, however, and entered a
TRO which, in fact, went significantly beyond the scope of relief sought in plaintiffs' emergency
—1—
<< COB0000002 >>
motion. Thus, the Court directed not only that the previously contemplated transfer of records
from Albuquerque, New Mexico, to Lee's Summit, Missouri, not take place; the Court directed
that the Interior Department shall take no action to transfer or relocate any trust records
containing any individual Indian trust data ("Trust Records") without the prior notice to the Court
and the Special Master." TRO (filed Apr. 18, 2002).
	As a result of the breadth of the Court's prohibition on the transfer or relocation of any
Trust Record, without prior notice to the Court and the Special Master, the Interior Department
cannot conduct many of its routine operations. For example, the TRO currently bars the Interior
Department from transferring probate orders to regional Land Title and Records Offices
(LTROs) for recording land ownership and encumbrances. See 25 C.F.R. §§ 150.6 and 150.10.
Further, the TRO bars the Interior Department from transmitting checks for using, leasing,
permitting, or acquiring trust lands or interests in trust lands. The TRO also bars the Office of
Trust Funds Management (OTFM) from taking actions required to with regard to Individual
Indian Money (JIM) accounts. We have attached the declaration of Mr. Terrance L. Virden,
Director of BLA's Office of Trust Responsibilities, to provide a further explanation of how the
TRO is preventing such routine Interior Department business from occurring, to the detriment of
the public, includina plaintiffs. Attachment A.'
	The TRO also impacts other Interior activities. For example, the Probate
Subproject of the HLIP possesses workpapers which include "test data" copies of documents
prepared from probate files. The original documents used to prepare the test data have not been
removed from probate files, but the TRO currently prevents the transfer of these workpaper
copies to the Office of Trust Systems and Projects in Albuquerque, New Mexico. In addition, the
MIMS Indian Royalties Office will need to move records in Lakewood, Colorado, to a new
location at the Federal Center in Lakewood, Colorado, by early June 2002 because of the
termination of its current lease. The TRO would prevent such a move, even though MMS will
cease to have a lease at this location.
-2-
<< COB0000003 >>
	Regardless of whether the Court accepts our contention that the TRO is wholly
unnecessary, to the extent the TRO prohibits or hinders the Interior Department's ability to move
or transfer Trust Records for routine activities required for the administration of IIM accounts, it
is contrary to the public interest. ~ Davennort v. International Brotherhood of Teamsters.
AEi,~~O 166 F.3d 356, 360 (D.C. Cir. 1999) (among factors to be considered by Court are
whether the public interest will be furthered by the granting of injunctive relief).
	II.	If the Court Decides to Extend the TRO, It Should Exempt From
		the TRO's Coverage All Routine Interior Department Activities
		Required for the Administration of IIM accounts, Including the
		Transfer and Movement of Trust Records for Such Purooses
	While we urge the Court not to extend the TRO in any fashion, in the event the Court
concludes that it will extend the TRO, we respectfully request that it exempt from the TRO's
coverage all routine Interior Department activities required for the administration of hiM
accounts, including the transfer and movement of Trust Records for such purposes. As we
explained above, the current TRO adversely impacts the public, including the plaintiffs. The
issuance of a more limited TRO, as we urge herein, will prevent such harm to the public.2
Respectfully submitted,
ROBERT MeCALLUM, JR.
Assistant Attorney General
STUART E. SCHIEFER
Deputy Assistant Attorney General
J.	CHRISTOPHER KOHN
Director
	2 We first learned about plaintiffs' intention to seek a complete extension of the
TRO on May 2, 2002, and attempted to contact plaintiffs' counsel to negotiate such a limitation.
Unfortunately, counsel for the parties were unable to speak prior to our filing this pleading.
-3-
<< COB0000004 >>
JOHN T. STEMPLEWJCZ
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
May 2, 2002
-4-
<< COB0000005 >>
0t/O1/02 15:51 FAX 202 219 0559	DOT Cobell litigation	l~OO2
iN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
	ELOUIS PEPION COBELL, et al.,	)
)
	Plaintiffs,	)
)
	v.	)	No. 1;96CV01285RCL
)
	GALE A. NORTON,	)
)
	Secretary of the Interior, et al.,	)
)
	Defendants.	)
DECLARATION OF TERRANCE L. VIRDEN
I, Torrance L. Virden, hereby declare pursuant to 28 U.S.C. § 1746, as follows~
	I.	I am the Director of the Office of Trust Responsibilities in the Bureau of Indian
Affairs. In that capacity, I am responsibic for the headquarters functions for all trust
services and natural resource management on Indian trust lands administered by the
Bureau of Indian Affairs.
	2.	In the normal course of business, the angina! probate orders issued by
Administrative Law Judges and Attorney Decision Makers of the Office of Hearings and
Appeals (OHA) are sent to the LTROs in accordance with 43 C.F.R. part 4, subpart D.
	3.	[n the normal course of business, original trust title documents are submitted by
agency offices and other entities to the Land Titles and Records Offices (LTROs) for
recording purposes. Following the recording process, those documents are returned to
the originating offices with the appropriate recording information. The regulations at 25
CFR 150.10 state that Managers of Land Titles and Records Offices are designated as the
Certifying Officers. The regulations state that, when a copy or reproduction of a title
document is certified by a Manager (LTRO), the copy or reproduction shall be admitted
into evidence the same as the original &om which it was made.
	4.	Many agency offices collect payments in the form of checks from entities who
are using, leasing, permitting, or acquiring trust lands or interests in trust lands. Those
payments (checks) are transmitted, generally by mail, to certain designated Regional banks
for deposit. The original check, whether personal or certified, must be used to make these
deposits.
	6.	Agency and Regional BIA offices must create documents as a part of the
process of disbursing trust funds. Those documents include Journal Vouchers (JYs), Bills
ArFflC~IA~T I~
<< COB0000006 >>
05/01/02 15:51 FAX 202 219 0559	DOI Cobell litigation	~jO03
For Collection (BFCs), Public Vouchers (PVs), Collcction Vouchers (CVs), etc. which
authorizc or accompany the proper handling, moving or disbursing of tnjst Ilinds.
	7.	In addition, the BIA oftcn requests thc Office of Trust Funds Management
(OTFM) to take an action regarding an Individual Indian Money Account (IIM), This
action may include the creation of an IIM account, the closure of an HM account,
disbursement of fUnds from an IIM account, and placing or removing a hold on an IIM
account. OTFM requires an original document or angina] signature in order to process
the action or request.
I hereby declare and affirm under the penalties of perjury that the foregoing is, to the best
of my knowledge, true and correct.
	TERRANCE L.	EN
Date:	5'-f —
<< COB0000007 >>
CERTIFICATE OF SERVICE
	I declare under penalty of perjury that, on May 2, 2002 I served the foregoing Interior
Defendants' Opposition to Plaint ifs 'Application for Extension of Temporary Restraining
Order, by facsimile in accordance with their written request of October 31, 2001 upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Brown, Esq.
1712 N Street, NW	1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20036-2976	Ninth Floor
202-822-0068	Washington, D.C. 20004
	202-318-2372
by Facsimile and U.S. Mail:
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Ave., N.W.
12th Floor
Washington, D.C. 20006
(202) 986-8477
by U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
Courtesy Copy by U.S Mail:
Joseph S. Kieffer, III
Court Monitor
420 - 7th Street, N.W.
Apartment 705
Washington, D.C. 20004