<< COB0000001 >>
TN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL et al
		)
	Plaintiffs,	)
)
	V.	)	Case No. I:96CV01285
		)	(Judge Lamberth)
	GALE NORTON, Secretary of the Interior, et ab,	)
		)
	     Defendants.	)
INTERIOR DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION FOR A
PRELIMINARY INJUNCTION
	Plaintiffs' Motion for a Preliminary Injunction to Protect Individual Indian Trust Data and
to Ensure That Individual Indian Trust Funds Are Distributed Without Further Delay ("Motion
for Preliminary Injunction"), filed December 16, 2001, should be denied because the relief it
seeks is overbroad and because relief to which Interior Defendants have consented' provides
sufficient protection for individual Indian trust data. Moreover, much of the additional relief
Plaintiffs seek beyond that to which Interior Defendants have consented is not available under the
Administrative Procedure Act ("APA").
_____________________________________________________________________________________________
	'The relief to which Interior Defendants have consented is that included in the Consent
Order Regarding Information Technology Security ("Consent Order"), entered by the Court on
December 17, 2001. The Consent Order was consented to by Interior Defendants, against whom
the relief it provides runs. Plaintiffs did not agree to the Consent Order and opposed its entry.
<< COB0000002 >>
BACKGROUND
I.	PROCEDURAL BACKGROUND
	On December 5, 2001, the Court entered a Temporary Restraining Order, amended on
December 6, 2001, requiring the Interior Defendants to "immediately disconnect from the
Internet all information technology systems that house or provide access to individual Indian trust
data" and to "immediately disconnect from the Internet all computers within the custody and
control of the Department of the Interior, its employees and contractors, that have access to
individual Indian trust data." On December 6, 2001, in open court, Interior Defendants offered to
prepare a proposed consent order regarding information technology security. On December 7,
2001, Interior Dcfcndants submitted a proposed consent order to the Court and to Plaintiffs.
Over the course of the next several days, Interior Defendants and Plaintiffs negotiated the terms
of a consent order that they could submit jointly to the Court and, on December 13, 2001, filed
with the Court an Agreed Consent Order.2 After Plaintiffs, with the Court's permission,
withdrew their agreement to the consent order on December 14, 2001, Interior Defendants moved
	2 Plaintiffs' Motion for Preliminary Injunction alleges that Interior Defendants engaged in
bad faith negotiations regarding this Agreed Consent Order in that Interior Defendants allegedly
agreed during negotiations that they would not argue to the Court that the Agreed Consent Order
would have any effect on the Supplemental Order to Show Cause, entered December 6, 2001.
See Motion for Preliminary Injunction at 3 ("because of the bad faith demonstrated by Norton
and MeCaleb, and their counsel, in the negotiation of a fraudulently induced consent order..
Interior Defendants deny any such agreement. Moreover, the possible relationship between the
Agreed Consent Order and the Supplemental Order to Show Cause was raised twice in open
court. See Ex 1 Dec. 6,2001 Tr., 21:5 - 24:18; 27:6 - 28:16; Lx. 2, Dec. 10, 2001 Tr., 28:5 -
29:10. The Agreed Consent Order did not address the Supplemental Order to Show Cause and
Interior Defendants' consent was not conditioned on the Court agreeing to vacate that Order.
Indeed, during proceedings in open court on December 14, 2001, the parties took different
positions on whether the provisions in the Agreed Consent Order satisfied the purposes of civil
contempt and, therefore, should result in vacating the Supplemental Order to Show Cause. See
Ex. 3, Dec. 14, 2001 Tr. at 810:7 - 822:3.
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orally that day and in writing on December 17, 2001, that the Court adopt a modified version of
the Agreed Consent Order. These modified versions deleted references to Plaintiffs' agreement
with the order and to the award of attorney fees to Plaintiffs. The modified version filed in
writing on December 17, 2001, also provided that it would supersede the Temporary Restraining
Order, rather than simply modify it.
	On December 16, 2001, Plaintiffs filed their Motion for Preliminary Injunction, seeking a
preliminary injunction "[t]o ensure adequate protection of individual Indian trust funds and trust
data and to enhance the safe and sound disbursement of HIM trust monies without further delay."
Motion for Preliminary Injunction at 9. Plaintiffs' proposed Preliminary Injunction Regarding
Information Technology Security ("Proposed Order"), while similar in many respects to the
proposed consent order offered by Interior Defendants on December 14 and 17, 2001, goes far
beyond it in certain terms. Differences between the two orders are discussed below.
	On December 17, 2001, the Court granted Interior Defendants' motion and entered the
Consent Order with the understanding that doing so would neither resolve the Supplemental
Order to Show Cause nor prevent Plaintiffs from seeking additional relief through their motion
for a preliminary injunction. The Consent Order provides, inter alia:
an ongoing role for the Special Master in (1) revie~ving Interior Defendants'
operation of information technology systems that currently or formerly (as of
December 5, 2001) housed or provided access to individual Indian trust data; (2)
ensuring the adequacy of safeguards to protect individual Indian trust data before
such systems are reconnected to the Internet; and (3) verifying compliance with
the Consent Order;
•	comprehensive definitions of the critical terms at issue;
•	a mechanism for Interior Defendants to resume operation of information
technology systems that were shut down pursuant to the December 5, 2001
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Temporary Restraining Order, as amended on December 6, 2001, if those systems
are not connected to the Internet;
•	a mechanism for the reconnection to the Internet of information technology
systems that neither house nor provide access to individual Indian trust data;
•	a mechanism for the temporary reconnection to the Internet of information
technology systems that house or provide access to individual Indian trust data for
the limited purposes of "testing the security of the information technology
systems" or "performing those functions necessary to receive, account for, and
distribute trust funds or appropriated funds, or to provide other necessary
services," including making payments to individual Indians;
•	a mechanism for the reconnection to the Internet on an ongoing basis of
information technology systems that house or provide access to individual Indian
trust data; and
•	a mechanism for Intcrior Dcfcndants to be relieved of the requirements of the
Order when they have brought their systems into compliance with 0MB Circular
A- 130.
II.	DIFFERENCES BETWEEN PLAINTIFFS' PRELIMINARY INJUNCTION AND
TilE CONSENT ORDER
	Plaintiffs' Proposed Order (PPO) and the Consent Order (GO) have the following
differences:
•	Plaintiffs' Proposed Order takes the form of a preliminary injunction, rather than a
consent order;
hitroductory paragraphs and definitions:
•	In addition to the items referenced in the Consent Order, Plaintiffs' Proposed
Order makes reference to the agreed consent order, the Deposition of Jeremy
Katz, taken on June 11, 2001, and Interior Defendants' counsel's statements made
in open court on December 14, 2001 (PPO 14);
•	Plaintiffs' Proposed Order begins the definition of individual Indian trust data
with the phrase "[i]nformation stored in an information technology system that
evidences, embodies, refers to or relates to the existenceof.. ." (PPO 14), rather
than the Consent Order's phrase "[a]ll data stored in an infonnation technology
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system upon which the Government must rely to fulfill its trust duties to Native
Americans pursuant to the Trust Fund Management Reform Act of 1994 (P.L. No.
103-4 12), other applicable statutes and orders of this Court reflecting, for
example, the existence of.. ." (CO 4).
Interior Defendants 'Representations.
•	Plaintiffs' Proposed Order requires Interior Defendants "to comply" with its
representation that it has already contracted Predictive Systems, Inc. to perform
specified services (PPO 15-16);
•	Plaintiffs' Proposed Order adds a 60-day time frame for Interior Defendants to
task an independent contractor to assess the requirements to bring certain
information technology systems into compliance with applicable standards from
0MB Circular A- 130 and orders Interior Defendants "to comply" with its
representation that it will do this (PPO 15-16);
•	Plaintiffs' Proposed Order adds a 120-day time franie for Interior Defendants to
bring certain information technology systems into compliance with applicable
standards from 0MB Circular A-130 and orders Interior Defendants "to comply"
with its representation that it will do this (PPO 15-16);
Receiving, accounting for, and distributing trust funds and appropriated funds:
•	Plaintiffs' Proposed Order requires Interior Defendants to "take all steps possible
to ensure that trust funds and appropriated funds are received, accounted for, and
distributed in a timely manner and without further delay" (PPO 16);
Resuming operation of systems and reconnection to the Internet:
•	Plaintiffs' Proposed Order does not provide a mechanism for Interior Defendants
to resume operation of information technology systems that were shut down
pursuant to the Temporary Restraining Order if those systems are not connected to
the Internet (CO 5);
•	Plaintiffs' Proposed Order requires Interior Defendants to obtain written approval
from the Special Master before reconnecting to the Internet any information
technology system that houses or provides access to individual Indian trust data
(PPO 16). The Consent Order requires Interior Defendants to provide the Special
Master and Plaintiffs' counsel with adequate notice and documentation of any
plan to reconnect to the Internet any information technology system that houses or
provides access to individual Indian trust data and prohibits such reconnection
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unless any objections raised by the Special Master have been resolved to his
satisfaction (CO 6-7).
•	Plaintiffs' Proposed Order does not provide a mechanism by which Interior
Defendants can seek relief from the Court if they are unable to resolve the Special
Master's objections. The Consent Order includes such a mechanism (CO 6, 7).
5)~'stenis that do NOT house or provide access to individual indian trust data.
•	Plaintiffs' Proposed Order requires Interior Defendants to obtain written approval
from the Special Master before reconnecting to the Internet any information
technology system that does NOT house or provide access to individual Indian
trust data, but which was shut down pursuant to the Temporary Restraining Order
(PPO 16-17). The Consent Order requires that Interior Defendants provide the
Special Master and Plaintiffs' counsel with adequate notice and documentation
that such systems do not house or provide access to individual Indian trust data
before reconnecting such systems (CO 5-6);
•	Plaintiffs' Proposed Order requires Interior Defendants to provide the Special
Master "with a verification executed under oath by an Interior official with
appropriate authority and personal knowledge as to the access and housing issues"
before reconnecting to the Internet any information technology system that does
NOT house or provide access to individual Indian trust data (PPO 16-17). The
Consent Order requires Interior defendants to provide the Special Master with
appropriate documentation, subject to the Special Master's overall authority to
verify compliance with the Consent Order (CO 5-6);
Ternporay reconnection c/systems that do house or provide access to individual Indian trust
data:
•	Plaintiffs' Proposed Order requires Interior Defendants to provide the Special
Master with respect to any proposed temporary reconnection to the Internet of an
information technology system that houses or provides access to individual Indian
trust data, a "step-by-step plan, a listing of all personnel who will implement the
temporary reconnection, a listing of all systems to be temporarily reconnected, all
steps and measures that will be taken to protect individual Indian trust data, the
duration of the temporary reconnection and appropriate verifications attesting to
the foregoing items." (PPO 17) The Consent Order requires Interior Defendants
to provide the Special Master with appropriate documentation, including "its plan
to reconnect temporarily," and prohibits reconnection if the Special Master objects
that the documentation provided is inadequate (CO 6);
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•	Plaintiffs' Proposed Order does not provide a mechanism to permit Interior
Defendants to temporarily reconnect to the Internet an information technology
system that houses or provides access to individual Indian trust data to provide
necessary services other than "to receive, account for, and distribute trust funds or
appropriated funds" (PPO 17). The Consent Order provides such a mechanism.
(CO 6);
Reconnection to the Internet on an ongoing basis:
•	Plaintiffs' Proposed Order prohibits Interior Defendants from reconnecting to the
Internet on an ongoing basis any information technology system that was shut
down pursuant to the Temporary Restraining Order, regardless of whether it
houses or provides access to individual Indian trust data, unless the Special
Master first determines that Interior Defendants "have satisfied the requirements
set forth in 0MB Circular A-130."3 Plaintiffs' Proposed Order also requires
Interior Defendants' supporting documentation provided to the Special Master to
include "a risk assessment and certifications from the Chief Information Officer
that the relevant information technology systems are in compliance with the
requirements set forth in 0MB Circular A-130." (PPO 17-18). The Consent
Order distinguishes between information technology systems that do and do not
house or provide access to individual Indian trust data. The Consent Order's
treatment of the former is discussed above. The Consent Order would permit
reconnection to the Internet on an ongoing basis of systems that do house or
provide access to individual Indian trust data if the Special Master is satisfied that
Interior Defendants' plan for reconnection provides adequate security for
individual Indian trust data and subject to his ongoing verification of compliance
with the Consent Order (CO 7);
Involvement of the Special Master:
•	Plaintiffs' Proposed Order would permit the Special Master to conduct interviews
or site visits without prior notice to the parties or their counsel (PPO 18-19). The
Consent Order requires that at least one counsel representing both parties be
permitted to attend such interviews or site visits, but prohibits them from
informing their clients about such interviews or visits in advance without written
permission from the Special Master (CO 7-8); and
	~	This is internally inconsistent with Plaintiffs' Proposed Order's allowance of
reconnection to the Internet of systems that do NOT house or provide access to individual Indian
trust data if accompanied by a specified verification and if approved by the Special Master (PPO
16-17).
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•	Plaintiffs' Proposed Order provides explicit permission for the Special Master to
"conduct penetration and similar security tests of Interior information technology
systems that houses [sic] or provides [sic] access to individual Indian trust data."
(PPO 8). The Consent Order does not address this issue.
ARGUMENT
I.	PLAINTIFFS ARE NOT ENTITLED TO A PRELIMINARY INJUNCTION
A.	Requirements for Obtaining a Preliminary Injunction
	"Injunctive relief is an extraordinary remedy, and the party seeking it bears a substantial
burden." Herrera v. Riley, 886 F. Supp. 45, 48 (D.D.C. 1995). To obtain this extraordinary
remedy, a plaintiff must show: (1) a substantial likelihood of success on the merits; (2) that
without injunctive relief he or she would suffer irreparable harm; (3) that issuance of an
injunction would not substantially harm other interested parties; and (4) that the public interest
favors the requested injunction. CityFed Fin. Corp. v. Office of Thrifi Supervision, 58 F.3d 738,
746 (D.C. Cir. 1995); Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). The
decision whether to grant injunctive relief requires the court to "balance the strengths of the
requesting party's arguments in each of the four required areas." CityFed, 58 F.3d at 747. This
"drastic and extraordinary form of relief should not be granted absent a clear and convincing
showing by the moving party." Kahane v. Secretary of State, 700 F. Supp. 1162, 1165 (D.D.C.
1988) (citing Yakus v. United States, 321 U.S. 414 (1944)).
	If injunctive relief is ultimately granted, it "must be narrowly tailored to remedy the harm
shown." Gulf Oil Corporation v. Brock, 778 F. 2d 834, 842 (D.C. Cir. 1985); see also. e.g.,
Aviation Consumer Action Project v. Washburn, 535 F.2d 101,108 (D.C. Cir. 1976) ("Injunctive
relief granted to a party in a lawsuit must be framed to remedy the harm claimed by the party.");
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Waldman Publishing Corp. v. Landoll. Inc., 43 F.3d 775, 785 (2d Cir. 1994) ("Injunctive relief
should be narrowly tailored to fit specific legal violations.").
B.	Plaintiffs Cannot Demonstrate Entitlement to Injunctive Relief
	Plaintiffs cannot carry their burden of demonstrating that they are entitled to injunctive
relief because some of the relief they seek is not available under the APA, because the relief they
seek is overbroad, and because the alternative relief to which Interior Defendants have consented
provides sufficient protection for individual Indian trust data.
I.	PlaintiJft Cannot Demonstrate Likelihood of Success on the Merits
	a.	Aspects of the requested relief are not available under the APA.
	Plaintiffs cannot demonstrate a likelihood of success on the merits of their claim for
injunctive relief because aspects of that relief are not available under the APA. Under the APA,
upon a finding of a violation of the law, agencies have the discretion to determine the steps they
will take to bring themselves into compliance, subject to further court review. See. e.g., Cobell
v. Norton, 240 F.3d 1081, 1109 (D.C. Cir. 2001) (as a matter ofjudicial policy, courts grant
agencies "'discretion to determine in the first instance,' how to bring themselves into
compliance" with applicable law) (citing Global Van Lines. Inc. v.1CC, 804 F.2d 1293, 1305
n.95 (D.C. Cir. 1986)); Public Citizen Health Research Group v. Comm'r. Food & Drug Admin.,
740 F.2d 21,35 (D.C. Cir. 1984), disapproved of on other grounds, Telecommunications
Research and Action Center v. F.C.C., 750 F.2d 70, 77 n.30 (D.C. Cir. 1984). In this case,
Interior has already decided on some of the steps it will take to remedy the identified deficiencies
in its information technology systems, and is actively working with the Special Master with
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respect to those steps. Some of these were included as representations of Interior's intent in the
Consent Order.
	Plaintiffs' Proposed Order would require Interior Defendants to undertake several specific
tasks. Specifically, the Proposed Order requires Interior Defendants to hire a specific contractor,
Predictive Systems, Inc., to install specific equipment to guard certain Internet access points; to
task an independent contractor to evaluate requirements to bring information technology systems
into compliance with "applicable standards outlined in 0MB Circular A-130" within 60 days;
and to bring all 'individual Indian trust information technology systems into compliance with
applicable standards outlined in 0MB Circular A-130" within 120 days. ~ Proposed Order at
1 5-16. None of these tasks constitutes non-discretionary, legally-enforceable duties under the
APA. Interior Defendants have decided to undertake each of these specific tasks, though not
within the unreasonable time frame proposed by Plaintiffs with respect to the last task, and have
represented this to the Court. However, neither Interior's decision nor its representation provides
authority to order Interior Defendants to undertake these specific tasks, nor to eliminate Interior
Defendants' discretion to implement a better solution if one becomes available. Of course, under
the relief to which Interior Defendants have consented, their actions in this regard will continue
to be subject to consultation with and verification by the Special Master until their information
technology systems that house or provide access to individual Indian trust data "are in
compliance with the applicable standards outlined in 0MB Circular A-130." Consent Order at 8.
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b.	The relief must be narrowly tailored to remedy the identified
deficiencies.
	Plaintiffs also cannot demonstrate a likelihood of success on the merits because several
aspects of the relief they seek are overbroad. Injunctive relief must be narrowly tailored to
remedy the harm shown. See Aviation Consumer Action Project, 535 F. 2d at 108-09 (finding
overbroad an injunction prohibiting certain activity by a number of advisory committees to the
Department of Commerce where evidence in the record only related to the activities of one
advisory committee). In this case, the injunctive relief must be narrowly tailored to remedying
the identified deficiencies in Interior's information technology systems that house or provide
access to individual Indian trust data. Plaintiffs' Proposed Injunction goes well beyond this.
	First, Plaintiffs offer a definition of individual Indian trust data that is overbroad and,
therefore, might encompass information technology systems that would have no possible impact
on the integrity of individual Indian trust data. Plaintiffs' Proposed Order would affect all of
Interior's information technology systems that store information that 'refers to or relates to,"
among other things, the existence of individual Indian trust assets. This definition goes ~vell
beyond establishing protections for the data that is needed to perform an accounting or to make
payments to individual Indian trust beneficiaries. Based on this definition, an e-mail sent from
an employee at the National Park Service ("NPS") to a friend at the Fish and Wildlife Service
("FWS") asking what the Cobell case is about, and eliciting an e-mail response that, in part, it is
about monies held in trust for individual Indians, could arguably "refer to" individual Indian trust
assets. This, therefore, could make NPS's and FWS's information technology systems into
systems that house or provide access to individual Indian trust data. This would be true even if
11
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those systems have no way of reaching or in any way affecting the accounts of individual Indian
trust beneficiaries or any data necessary or useful to performing an accounting.
	Second, Plaintiffs ask the Court to order Interior Defendants to "take all steps possible to
ensure that trust funds and appropriated funds are received, accounted for, and distributed in a
timely manner and without further delay." Plaintiffs' Proposed Order at 16. As noted in the
attached Declaration of James McDivitt ("McDivitt Deci."), Interior Defendants have taken steps
to bring up systems necessary to receive, account currently for, and distribute trust funds and
appropriated funds to individual Indians. See Ex. 4, ~}¶ 3-1 1; Ex. 5, Letter from Sandra P.
Spooner to Alan L. Balaran, December21, 2001 (providing information to the Special Master
and stating that "Interior will, of course, await your approval before connecting"). Interior
Defendants sought permission from the Special Master to bring up the system necessary to make
social sen'ices payments (payments for general assistance, child assistance, emergency
assistancc, and burial assistance for eligible Indian clients for whom no other assistance is
available) the same day the Consent Ordcr was entered, and received permission shortly
thereafter. See Ex. 4, McDivitt Decl. ¶ 6 & Attach. A. Pursuant to the Consent Order, Interior
Defendants have sought permission to bring up the systems necessary to receive, account for, and
distribute other trust funds and appropriated funds to individual Indians and to tribcs, and are
currently working ~vith the Special Master to provide the additional assurances he has requested.
See Ex. 4. McDivitt Decl., ¶¶ 8-1 1 & Attach. B; Ex. 5. Plaintiffs' proposed language is not
supported by any factual allegations or evidence that Interior Defendants are likely to delay any
such distributions once they, working with the Special Master, are able to provide adequate
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<< COB0000013 >>
protection for individual Indian trust data while operating the systems necessary to make such
payments.
	Third, Plaintiffs' Proposed Order would require Interior Defendants to bring certain
information technology systems into compliance with applicable standards from 0MB Circular
A-130 within 120 days. Plaintiffs have provided no evidence suggesting that this is either
necessary or possible. In fact, bringing information technology systems as large and complicated
as Interior Defendants' systems that house or provide access to individual Indian trust data into
compliance with 0MB Circular A-I 30 is a complicated process that cannot possibly be achieved
in that short time frame. See Declaration of Hart Rossman, ¶¶ 4-6, Ex. 6. Attempting to rush
that process to meet an arbitrary time frame is unlikely to achieve effective protection for
individual Indian trust data. An reasonable, estimated time frame to bring all of Interior's
individual Indian trust information systems into compliance with 0MB Circular A-130, provided
by a contractor who Interior has contracted to provide information technology security services to
Interior, is between two and four years. See id. ¶ 5.
	Although it is not reasonable to expect that all of Interior Defendants' information
technology systems can be fully compliant with 0MB Circular A-130 within 120 days, it is
possible that other assurances of sufficient security can be provided to permit Interior Defendants
to reconnect to the Internet its information technology systems that house or provide access to
individual Indian trust data. $.~ j~ ¶ 7. Because Interior Defendants have consented to a system
under which they will not reconnect to the Internet such systems unless the Special Master agrees
that sufficient protections for individual Indian trust data are in place, it is unnecessary to require
compliance with 0MB Circular A-130 before systems can be reconnected to the Internet on an
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<< COB0000014 >>
ongoing basis. Nor is doing so practical over the course of the entire process of obtaining
compliance. Such relief is not narrowly tailored to remedying the identified deficiencies.
	Fourth, Plaintiffs' Proposed Order lists spccific items Interior Defendants must present to
the Special Master before reconnecting certain systems to the Internet, regardless of the
circumstances of the reconnection. For a temporary reconnection, such items include "a listing
of all personnel who will implement the temporary reconnection, a listing of all systems to be
temporarily reconnected, all steps and measures that will be taken to protect individual Indian
trust data... ." ~ Proposed Order at 17. The Proposed Order does not include any exceptions
for circumstances in which it might not be possible or sensible to list "all personnel" who will be
involved or to predict "all steps and measures" that will be necessary to protect data if a
complicated set of systems must be brought up at the same time. If, in a complicated
reconnection plan, it is only possible to list key personnel, rather than all personnel, this plan
should still be able to go forward if the Special Master agrees there is adcquate protection for
individual Indian trust data. Plaintiffs' requirements would not only remove flexibility in
establishing viable reconnection plans that provide adequate security, but they ~vould also take
away from the Special Master discretion as to establishing what assurances are necessary in
particular circumstances. These inflexible and cumbersome requirements could impede
reconnections, thereby delaying provision of services supported by the systems. Under the
Consent Order, the Special Master could demand these specific items, if they are appropriate to
the situation, or he could demand additional or alternative assurances.
	Plaintiffs cannot demonstrate a substantial likelihood of success in achieving the relief
requested in their Proposed Order because aspects of that relief are not attainable under the APA
14
<< COB0000015 >>
or are not narrowly tailored to remedy the identified deficiencies in Interior's information
technology systems that house or provide access to individual Indian trust data.
2.	Plaint ifs Cannot Demonstrate Irreparable Harm
	Plaintiffs cannot demonstrate that they would suffer irreparable harm in the absence of
injunctive relief because the relief to which Interior Defendants have consented provides
sufficient protection for individual Indian trust data. The Court of Appeals has stated that to
constitute irreparable harm, the "injury must be both certain and great; it must be actual and not
theoretical . . . the party seeking injunctive relief must show that the injury complained of is of
such imminence that there is a clear and present need for equitable relief to prevent irreparable
harm." Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (emphasis in original).
Therefore, "[b]are allegations of what is likely to occur are of no value since the court must
decide whether the harm will in fact occur. The movant must provide proof that the harm has
occurred in the past and is likely to occur again, or proof indicating that the harm is certain to
occur in the near future." Id.
	Plaintiffs argue that without their preliminary injunction, individual Indian trust data
stored in Interior's information technology systems will be "subject to alteration, modification
and corruption." Plaintiffs' Motion at 7. However, the relief to which Interior Defendants have
consented provides protection for this data. The Consent Order does not allow Interior
Defendants to reconnect to the Internet information technology systems that house or provide
access to individual Indian trust data without providing sufficient assurances that the individual
Indian trust data is sufficiently protected. Furthermore, the Court, as a result of the ongoing role
of the Special Master, has the ability to verify this protection. Plaintiffs have not demonstrated
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why this relief does not provide adequate protection for individual Indian trust data, or how the
additional relief thcy request would provide such protection. Nor have Plaintiffs demonstrated
what "harm will in fact occur" if the relief to which Interior Defendants have consented remains
in place.
	Plaintiffs also cannot demonstrate that they would suffer irreparable harm in the absence
of the preliminary injunction they seek because the injury they allege is speculative. Although
Interior Defendants acknowledge the existence of substantial deficiencies in the security of its
information technology systems that house or provide access to individual Indian trust data, and
are working to address those deficiencies, Plaintiffs have not produced any evidence that these
security deficiencies have led to any actual harm from the manipulation, alteration, or corruption
of individual Indian trust data. The only evidence of actual intrusion and alteration of data is that
performed by Predictive Systems under the direction of the Special Master. Such loss, therefore,
is speculative, especially with the protections in place as part of the relief to which Interior
Defendants have consented.
3.	Neither the Balance of Harms nor the Public Interest Favor Granting the
Preliminarj.' Injunction
	The balance of hardships and the public interest both oppose entry of injunctive relief in
this case. Entry of the preliminary injunction would harm Interior, and hinder Interior's ability to
provide services to the public, in several ways. First, if Plaintiffs' unreasonable 120-day time
frame for fully complying with applicable standards from 0MB Circular A-130 were imposed,
Interior Defendants would not be able to comply with the order. See Ex. 6, Rossman DecI., ¶ 6.
Second, adopting Plaintiffs' definition of individual Indian trust data could result in keeping off
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the Internet Interior information technology systems that would have no impact on individual
Indian trust data if reconnected. This, in turn, might prevent Interior from providing valuable
services to the public. See supra, at 11-12. Third, if Interior Defendants were required to
produce Plaintiffs' inflexible specific lists of items before reconnecting to the Internet relevant
information technology systems, Interior Defendants' ability to reconnect and provide essential
services could be hindered. Under the Consent Order, the Special Master can request all, or if
the specific situation calls for it, different information.
	Fourth, Plaintiffs' Proposed Order's prohibition on Interior Defendants reconnecting to
the Internet on an ongoing basis information technology systems that provide adequate protection
for individual Indian trust data until those systems are fully compliant with 0MB Circular A-130
could lead to unreasonable delay in providing essential services and inordinate amounts of
unnecessary expense and risk. Fifth, Plaintiffs' Proposed Order would not permit Interior to
reconnect temporarily to the Internet, subject to the Special Master's review, information
technology systems that house or provide access to individual Indian trust data for the purpose of
providing necessary services other than receiving, accounting currently for, and distributing trust
funds or appropriated funds. This would deny Interior and the Special Master the flexibility to
address needs that might arise, including law enforcement and fire protection needs. See
Declaration of James Cason, ¶¶ 7-8, Ex. 7.
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<< COB0000018 >>
CONCLUSION
For these reasons, Plaintiffs' Motion for Preliminary Injunction should be denied.
Respectfully submitted,
ROBERT D. McCALLUM, JR.
Assistant Attorney General
STUART E. SCHIFFER
Deputy Assistant Attorney General
J. CHRISTOPHER KOHN
Director, Bar No. 212357
SANDRA P .SPOONER
Deputy Director, Bar No. 261495
JOHN T. STEMPLEWICZ
Senior Trial Attorney
MATTHEW J. FADER
Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
OF COUNSEL:
Sabrina A. McCarthy
Department of the Interior
Office of the Solicitor
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CERTIFICATE OF SERVICE
	I declare under penalty of perjury that, on January 4, 2002 1 served the foregoing
Interior Defendants' Response to Plaintiffs' Motion for a Preliminary Injunction by facsimile upon:
Keith Haiper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Brown, Esq.
1712 N Street, NW	1275 Pennsylvania Avenue, N.W.
Washington, D.C. 2003 6-2976	Ninth Floor
202-822-0068	Washington, D.C. 20004
	2 02-3 18-2372
by facsimile and by hand:	and by hand:
Alan L. Balaran, Esq.	Joseph S. Kieffer, III
Special Master	Court Monitor
1717 Pennsylvania Ave., N.W.	420 - 7d~ Street, N.W.
12th Floor	Apartment 705
Washington, D.C. 20006	Washington, D.C. 20004
(202) 986-8477
by U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530