1 
FECElVED 
L?IsTRICT OF COLUMBIA 
IN THE UNITED STATES DTSTRICT COURT 
FORTHEDISTRICTOFCOLUMBIA 733 JtfN 24 Pw 5: 52 
~ ~ ~ C Y M. 
M A'f E R -WHIT f I HG T 0 !4 ELOUISE PEPION COBELL, a &, 
Plaintiffs, 
V. ) 
1 
) 
) 
1 
U.S. DISTRICT COUE r 
CLERK 
Case No. 196CVO1285 (RCL) 
(Judge Larnberth) ) 
GALE A. NORTON, Secretary of the Interior, ak,) 
1 
1 Defendants. 
INTERIOR DEFENDANTS' MOTION FOR EXPEDITED CONSIDERATION 
OF INTERIOR'S MOTION TO DISOUALIFY SPECIAL MASTER B A L M 
Interior Defendants respectfully move for expedited consideration of Interior's Motion to 
Disqualify Special Master Balaran, filed on May 29, 2003.' Expedited consideration is needed to 
ensure that Interior Defendants receive an impartial disposition of the many matters now pending 
or undertaken by the Special Master since the Motion to Disqualify was filed. In the Motion to 
Disqualify, Interior Defendants have raised serious questions about the ability of Mr. Balaran to 
serve as a special master in this litigation. These questions require prompt resolution. 
Mr. Balaran has recently announced his intention to begin a new investigation under the 
aegis of his authority to oversee records retention matters (& Letter of June 5 , 2003 from Alan 
Balaran to Amalia Kessler (attached as Exhibit A)), baselessly accused Interior's counsel of 
failing to conduct the appropriate Rule 11 due diligence before signing a letter to the Special 
Master in connection with his authority to oversee IT matters (see Letter of June 19, 2003 from 
Alan Balaran to Sandra Spooner and Letter of June 20, 2003 from Sandra Spooner to Alan 
In accordance with Local Civil Rule 7.l(ni), counsel for Interior Defendants conferred 
with Plaintiffs' counsel regarding this motion. Counsel for Plaintiffs stated that Plaintiffs oppose 
this motion. Balaran (attached as Exhibit B)), and has renewed his request for documents related to his NAID 
investigation (see Letter of June 23,2003 from Alan Balaran to Phil Seligrnan (attached as 
Exhibit C)). It was, of course, Mr. Balaran’s improper conduct during the NAID investigation 
which prompted the Motion to Disqualify. 
Plaintiffs will not suffer any prejudice from expedited consideration. On June 12, 2003 
Plaintiffs moved for an enlargement of time to oppose the Motion to Disqualify, claiming that 
their limited resources were devoted to prosecution of trial 1.5. On June 20,2003, Plaintiffs 
filed a Motion for an Order to Show Cause why Interior Defendants should not be held in 
contempt for actions related to Mr. Balaran’s IT investigations. Apparently Plaintiffs’ counsel 
have now acquired the necessary resources for non-trial related briefing. 
For these reasons, Interior Defendants respectfully request that the Court enter the 
attached order granting expedited consideration of the Motion to Disqualify. Under the proposed 
order, Plaintiffs would file, and serve upon Interior Defendants, any opposition to the Motion to 
Disqualify by June 27, 2003, and Interior Defendants would file any reply by June 30,2003. 
Respectfully submitted, Dated: June 24,2003 
ROBERT D. McCALLUM, JR. 
Assistant Attorney General 
STUART E. SCHLFFER 
Deputy Assistant Attorney General 
J . CHRISTOPHER KOHN 
Director 
Deputy Director 
D.C. Bar No. 261495 
JOHN T. STEMPLEWICZ 
- 2 - Senior Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 5 14-7 194 
- 3 - IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUlSE PEPION COBELL, gt 
Plaintiffs, 
V. 
1 
) 
1 
) 
1 
Case No. 1 :96CV01285 
(Judge Lamberth) 
al., 
GALE NORTON, Secretary of the Interior, gt &, 
) 
) 
) 
) 
Defendants. 
it is further 
SO ORDERED. 
Date: 
ORDER 
This matter comes before the Court on Interior Defendants’ Motion for Expedited 
Consideration of Interior’s Motion to Disqualify Special Master Balaran. Upon consideration of 
the Motion, the responses thereto, and the record in this case, it is hereby 
ORDERED that Interior Defendants’ Motion for Expedited Consideration is GRANTED; 
ORDEFED that Plaintiffs file, and serve upon Interior Defendants, any opposition to 
Interior Defendants’ Motion to Disqualify Special Master Balaran, by June 27, 2003; 
ORDERED that Interior Defendants file any reply by June 30, 2003. 
ROYCEC. LAMBERTH 
United States District Judge cc: 
Sandra P. Spooner 
John T. Stemplewicz 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Fax (202) 5 14-9 163 
Mark Kester Brown, Esq. 
Dennis M. Gingold, Esq. 
607 - 14th Street, NW 
Box 6 
Washington, DC 20005 
Fax (202) 3 18-2372 
Keith Harper, Esq. 
Native American Rights Fund 
17 12 N Street, NW 
Washington, D.C. 20036-2976 
Fax (202) 822-0068 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Alan L. Balaran, Esq. 
Special Master 
17 17 Pennsylvania Avenue, N.W. 
13 th Floor 
Washington, D.C. 20006 
(202) 986-8477 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 594 17 
(406) 338-7530 J ~ 1 - 3 5 4 3 0 5 : 0 7 From-THE 1AW OFFICE OF 
ALAN L. BALARAN, V.L.L.C. 
VIA FACSIWLE 
/unii!ia Ktssler 
UWTED STATES DEPARTMEKT OF JUSTICE 
Civil Division 
Commsrcial Lirigation Branch 
P. 0. Box 575 
Ben Franklin Sration 
issued 
Washi~l~ol1, DC 20046-0575 
Dear Ms. Kessler: 
Ir. March 2003, rhe 
irs of the 
Audir 
Audit 
c1ec:ronic 
objecrive of ihar 
copy of the QhfS 
rzpon 
audlt an 
of the MMS 
lnvoiving 
Depanmeix 
Minerals M:uiu.li.igmienr 
rransmirred far 
“was TO dstennine whether 
Audit of the I\linerals Management Service Audit. 
Ofices (To. 2003-I-0023j March 2003 
ofrhe ‘Interior 0l‘l.ict. afrhe Inspearor Generai (“OIG”) 
Service Audir Offices (“MMS 
yo:u rcvicnr.) Repon will bc 
whcrc the 
Audit 
ax performed in accsrdance 
OIG reponed 
MMS 
Repoif’). (A1 
Thc stared 
MMs’ intemzt quality control system 
Icith established 
S& Memorandum 
Region 10 rbe Assisrint Secrelary far 
collecrion of $6 biltian in roydltles ard fees for 
it 
Audir 
provides reasonable assurance rhat MllS audirs 
policies, proccdurcs, and the Govemmenr Auditing Sranrlards (Srandardsj.” 
From .Anne Richards, Regionn! 
Land and Mnerals ii\.l,uiagernenr. 
Since iM?ifS is rfsponsible far Ihe ,annllal 
caritled 
minerais produced from federal, mib4 and 3llot1ed lands, I became canceined tipoil reading a 
section 
rc\ icw Navajo Indian leases. According to the 
[wlhen MMS officials could nor of informing [the 
OIG] of that f m , they recreated and backdared ihe working papers. The recreared 
10 bvhen papers were dared 
when the replacement working papers uere aclually created. 
file, instead locare rhis mdlr 
MMS believed [he work had been done rather than 
Audit 
-4udk hlwager? Cziilral 
“Profess~onal~srn.” 
ALAN F-84E 7-823 2029669477 P Ot103 BALARAN 
June 5,2003 
Cobell v. Yortoii Civil Action h’a. 96-1285 I?.€. 
tha: selected for 
Repon, 
Considerdhon 
Exhibit A 
to 
Defendants’ Motion for Expedited 
Disqwldy S M Batant1 J ~ v c 5 - 3 3 E:01 
Aside from the vialarion of Court orders implicxed by the 
[lie Court, rhc MMS 
documenlalion was misjing andlor thai files conraining U%l 
ar 9.’ 
failed to infonn 
Instead, Mh4S auditors “recreated” and %ackdarsd” The records 
awarded a cash bonus for his dupliciry. Beyond was 
come lo light. 
invesngare MhfS’ leasing files to determine 
From-THE LAW 
conraining mmsr 
allortees) rhar 
fils. TA 
OFFtCE C?F ALAN 
informarion, 
trust 
infornixion were “inconipletc.“? 
to deceive rhe 
;3r 
rhe MMS Audit 
The M M S Audit Repon mentions two 
Indian leases; a statistical possibility :hat working papers far as many as 62 audits are missing; 
rhe existence of “incomplete tiles” far rhe audirs pcrfonued by the same employees responsible 
“incomplcre sets” of files (lacking for recrearing and backduing the Navajo leases file; and 30 
woiking papers or niasrer indices). 
S 
other insrailces of missing files pertaining to 
iiot 
judgment samples and Cot an exhaustive 
1 
v\ 
Elrcrronic attachnitnr 
Dtmi:s Gngold, Esq (w’attachmenr) cc: 
TCV:CW 
’ 
Nai3jo 
atrempr in an 
underlying 
can not 
I 
1 
its audir, the loss 
am therefore infomlng you of my 
Thank you. 
These 
of cad: 
As 
thal TNSL 
OIG. And one 
this, rmsi inronnalion missing fiom these incomplete files and work papers ;LTC germane to the 
findings o f the OiG, plaintiffs lirigacion and rhus discoverable by plaintiffs. Given rhe 
delermjne w-hetha documenrs produccd by the azency are ‘Loriginals” or “recreations” 
generafed by “creative” employees amiring cash bonuses. 
am confident that had rhc 
ofthe Nin’njo tmsr informarion would 
hether individual Indian trusl information is properly mahitained and safsguarded. 
firpes were based on statistical and 
6-9. 
Report is 
docurnenration ~ 3 s missing ar rhe 
intention TO 
Sincerely, 
daied -Much 2903, I suspecr rhar rhe agency was aware 
was Lindertdceq ilic audii 
OIG nor uncovered this problem in rhe 
have 
PALARAN 2 0 2 EE847t 
loss of 
1-623 P 03/03 F-846 
Kavajo leasing GIes 
phintif:fs (or, I suspect, the 
c o m e of performiiig 
in 2001. time T-848 2029868477 BALARAN From-THE LAW OFF ICE OF ALAN jun-19-03 04:Z3 
ALAN L. BAXARAN, P.L.L.C. 
P OtlO3 F-928 
1717 PEWSYl.V&VrAA~.,~W 
TWELFTH FLOOR 
WASHIMGTON. UC. 268116 
TELEPHONE CO?> 466-501 L) 
FAX 1202) 966-8477 
E-M4IL abaknr@-erob.com June 19,2003 
VIA FACSIMILE 
Sandra Spooner, Esq. 
UNITED STATES DEPARTMENT OF JUSTICE 
Civil Division - Commercial Litisation Branch 
P.O. Box 875 
Ben Franklin Station 
Cobell et sl. v. Norton et al., 
Washington, DC 20044-0875 
Dear Ms. Spooner: 
Thank you far 
“[n]o in 
direcr 
” 
assume 
the April 23, 2003 
that 
because no attorney has rhat 
cable cured the probIem noticed by an Inrenor employee.” I rcspecrfully disagree. While Mr. 
Gilletr msy nor have 
presenting me wiih an explanation, he 
of [he Office of Surhce Mining ‘*cable failure,” by 
personally 
knowledge, information, and belief, formed after a11 inquiry rcrtsonab!e undzr rhe cmumsrances. 
:err& had . . the allegarions and 
“evidentlay support 
“pleading[s], written motion[s), or orhcr paperJd.” 
Beyond the requiremenis 
correspondence. lhat 
June 1 1, 2003 lecrer, 1 
the 
that led to 
Civil Action No. 96-1285 
certification ihx rhc 
letrer] are accuraie’ 
tllat researing rhe LAN 
extends ro 
events 
rings m e . 
2003 
know, This requirerneni, as you 
(Emphasis added.) 
of Rule 11, the need for personal certification in this jnstance is 
particularly acute, given Mr. Gillett’s relimce on ”privileged” “drafi correspondwce beween the 
Departmenr ofthe Interior and the Department of Justice.” Since i r appears, by your 
requisire duc diiigencz ‘beforc signing ehr 
‘‘draft” doeuinenrs from 
pcrfomi the 
accept explanarions extracted 
of unknown authorship that 1 mi unable to examine. Again, I disagree, and will not recommence 
reconnection process until rhe docunienrarion 
rhe 
explaining 
explanarion that 
RE: 
direct 
Mr. GiIletr did 
rliar 
OSM 
OSM Server Outage 
y o u lerrer dared June 18,3003 (sent and received this dare), wher&in y o ~ l 
attorney rhe Depanmsnr ‘a persorxttl 
h e 1 1, 2003 
stare 
representations reflected in (DOJ Arromey 
of Justice can make 
Glenn Gillerr’s 
knowledge a L.4N cable was loose or 
knowledge 
‘xenifying rhat to thq best of [his] 
in his June 1 1, other 
Fed.R.Civ.Pro. 
facrual contentions” ser out 
1 I(b)(3j 
nor 
I run 
211 
m 
to 
I have reviewed re!CVtmT 
ourage, and satisfied server 
Exhibit B 
Deferidants’ hfotion for Expedited 
(:onsideration to Disqualify S . M. Balaran Jun-19-113 From-THE LAW 04:23 OFFICE OF ALAN 
cc: Dennis Cingold, Esq. 
@ALARAN 7-1148 P 202986847? F-918 om 
L. Balaran 
SPECIAL MASTER 
Alan . . 
Sandrii 1’ Spooner 
Deputy Uirrclor 
By Focsimifc 
Mr, Afati Balaran 
I717 Pennsylvania Avcriirc, N.W. 
Thirlccnth Floor 
Washirigton, D.C. 20006 
Ke; 
applicable. 
provided you 
both 
froiii the usel 
Cobell v. Norton 
Dear Mr. Ralaran: 
Through Ihc 
Juiic 11, 
the evidence to support 
Your June 19 letter states that “it appears, by [Department of‘Justicc] correspondence, 
that Mr. Gillett did not perfonii the requisite cluc tliligcnce before signing the dune I 1, 2003 
letter.” Your allcgalion is unfounded. My letters to you cannot rcasonably be interpreted to 
suggest that Mr. Gillett did riot mccl all of his obligations, includirig Rule 1 1 to the extent it is 
Before you wrote your Jrinc 19 letter, you were aware that the June 5, 2003 sworn 
testimony of Associate Deputy Sccrctary of the Interior James Cason in rhc Phase 1.5 trial 
procccding was consistent with the facts sot forrh in Mr. Gillett’s June I 1 letter. Indeed, I 
dunc rclcvant testimony in my 
familiar 
with 1hc 
wac 2003). Mr. (hllett 
addition, before hfr. Gillett sent his Icfter, 
tioni Mr. Roy Morrison and the service icchnician who received the Icport d t h e outage 
arid rcrriudied the 
:OSM 
We received your Jurw 19.2003 letter concerning the OSM scrver outage incident. 
misstatements, omissions, arid 
have attempted to cicatc an clhical issue where none exists. I havc bcen involved in the drafting 
ofour letters on this subject, and have iio doubt that the inquiry conducted hcforc Mr. Gillett’s 
2003 lcltcr to you was signed was iiiorc 
the 
Server Outam on April 23,2003 
unsiippor~ed allegations in your letter, you 
adequate under the circuinstancm and that than 
statements in MI-. Gillett’s lclkx- is strong and consistent. 
tic 
19, 2003 letter (inconectlydated June 
with this testimony before signcd the June I 1, 2003 Iettcr. In 
inforniatiori conccrning the he received 
L\scrtions problem. The factual in Mr Gillett’s Iettcr 
. . .. . . .. 
P 0, Box 
Washinyton, D.C. 
June 20, 2003 
I&, 
United States Departitretit of Justice 
Civif Division 
Comincrcinl Litigation llranch 
. . . . . . . 
875, Dcn rranklin Sbtiori ‘Tel. ( X I Z ) 514-7194 
20041-0875 Fax: (202) 307-049.1 
Email: s;uidra,spooncr~~usd[i; gov 
sewer outage 
wcrc also by Mr. Gillett was inquirymade 
lcstimony of Mr. Cason by 
The 
indeed, the sworn 
reviewed carefully by Mr. Uason before thc lctlcr was sent. 
iiiorc than reasonable under the circuinstauces; 
ihc rcquircment that a factuat assertion “have evideritiary supporl.” Fed. R. Civ. P. 
that thc 
itself satisfies 
1 1 (bK3 1. 
Your disagreement with my assertion that “no attorney in tttc Dcparlrnent of Justice can 
make a personal ceilification reflected in said document arc accurate" rcprcsentations 
(cmphasis in original) exhibits a lack of undcrstanding of (he difference between a certiticatiori 
that particular fac1.s are accurate (the standard you create) and thc Rule 1 1 certification that &‘to 
the best of the person’s knowictlgc, information and belie( foniied after reasoiiablc inquiry tinder 
the circumstances . . . the allegations or other lkAual contentioils have evidentiary support . . . .” 
- Id. Thc ctiffcrence is not sernantic. 
Further, your Junc 2003 cerlify that the letter purported to require Mr. Gillett to 
of 
June 19, 2003 letter. 
IS, 
are accurate, not that Mr. 
C~illctt’s J I J I ~ C 11, 2003 lettcr was accurate, as you 
discussed “an unattributed and unattached Your letter of Julie 1 5,3003 correspondcnce or 
memorandum” and deriialided that Mr. Gitlcl provide a “personal certification that tlic 
reprcscntations “[DO.J 
from the 
certified. This is 
Gillette. 
here, where, notwithstanditig your accusations, you have not suggested that thcrc 
itiI‘ormation provided to you by MI-, 
We are confident that the inquiry ma& prior to the signing of the letter passes muster under Rule 
I 1 standards and you have never- giveti us any basis to question the results of our inquiry. 
19 letter gratuitously defames Mr. Gillctt‘s reputation and Itiasrnuch as your Jtirie 
professionalism without the sligh(cst basis to support your allegations, thc letter should be 
him to 
As you know, until veiy recently, you have consistently coainiended t o roc the conduct 
assigii 
accusalions are so ill- 
point of asking that I 
rccctit 
representations irr (I docicrtioiifronr the Jlepcirfrwnt rite Interior 
inconeclly stltlc in your 
lellcr of lriiie 19, 2003 substitutes in said 
Attorney Gleiin Gillclt’s June i 1, 2003 
applics to Mr. Cillett’s letter rather than the documcnl 
document are accurate.” Your 
tetterj” for “said documcnt,” incorrectly implyliig that the 
certification you deiiiiuided 
Department of the Lnterior that coiitairied thc: information used in the June I 1 letter. 
acccptcd 
Finally, ifyou arc correct that the signature ofour attnrricy was a ccrlification under RuIe 
the June 11, 2003 letter as having been 1 1, then you should have 
especially tnte 
the slircd o f cvitlcnce that is nins counter to even a 
relracted. 
of and assistance provided to by Mr. Gillett - even to Lhc 
othcr attorneys in my office. Your various rtiatters itisleati of 
founded and 
cc: 
Kcitti IIarper, 
you 
disproportionate as to defy lcgitimate explanation, absent a fuiitiaincnlal 
misunderstanding. Under the circumstarices, your accusations should be withdrawn irnmcdiately. 
Dennis Gingold, Esq. (by facsimilc) 
Esq. (by facsiniile) 
2 1-955 P 02/02 F-943 From-THE LAW Jun-tt-il3 2il:fE 
ALAN 
.S3YITTEL? 1% DC .-2413 ML 
VIA FACSTMYLE 
Phillip Seligman, Esq. 
UNITED STATES DEPARTMEhT OF XSTICE 
Civit Division - Cornmerci al Lirigation Branch 
2029868477 
.4gency Investigation 
matten McGariry Clark will no longer be handling 
site \ i s i t by rhe Special Master Team to rhe Wewaka and Chickasaw 
and rhar yau wll be assuming responsibiliry for rhar investigation. Please advise me, 
L can expect the f i n d production of documents responsive 
finally expect to rewive h e , when I can 
documents responsive 10 my rcqeared requests coccemin,n rhe SAD invesrrgarion. 
OFF!Cf OF ALAN PALAPAN 
L. BAURAN, r.L.L.c. 
June 23,2003 
RE: Cobell et al- v. ?lortan et d., Civil G C ~ ~ O Y J No. 96-1285 
WewokdChickasaw 
relared ha\ e been adwsed chat M s . 
to the December 12, 2002 
Sincerely, 
i.,+ Alan L. Baluan 
SPECL4L MASTER 
Exhibit C 
Dekndants' 
Consideration to Disqualify S. M. Balann 
P.O. Box 875 
Ben FrankIin Srarion 
Washington, DC 20044-0875 
Dear Mr. Seligmn: 
? 
.4gencies 
before close of business today, when 
ro my lertir dared May 13, 2003. 
Please also advise me, within rhe same time 
Thank you. 
ci: Dennis Gingold, Esq. 
Motion for Expedited CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on June 24,2003 I served the foregoing Interior 
Defendants’ Motion for Expedited Consideration of Interior’s Motion to Disqualifi Special 
Master Balaran 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 
By facsimile and U.S. Mail: 
Alan L. Balaran, Esq. 
Special Master 
17 1 7 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 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530