--,< -“, - - 
~ I-^ 
NO. 03-5314 
i 
i IN +HE UNITED STATES COURT OF APPEALS 
‘ FOE THE DISTRICT OF COLUMBIA CIRCUIT . 
V. 
1 
1 
) 
1 
1 
1 
-- - . 
-w-. 
ELOUISE PEPION COBELL, et al., 
Plainti ffs-Appellees, 
GALE A. NORTON, 
Secretary of the Interior, et al., 
Defendants-Appellants. 
1 
1 
1 
1 
1 
RESPONSE TO PLAINTIFFS’ EMERGENCY 
MOTION FOR EXPEDITED BRIEFING AND ARGUMENT 
Defendants-appellants, Gale Norton, Secretary of the Interior, et al., respectfully respond to 
plaintiffs’ emergency motion for expedited briefing and oral argument. 
The government has no objection to proceeding on an expedited basis if this Court believes that 
course appropriate. We respond to make four points. 
First, plaintiffs’ motion does not address the impact of recently enacted legislation on the 
advisability of expedition. 
Second, plaintiffs’ assertions of harm, twice considered by this Court in its stay rulings, give r i s e 
to no “emergency.” 
Third, if the Court deteiniines that expedition is appropriate, we would ask for a modest 
extension of the briefing scheduie proposed by plaintiffs as well as an enlargement of the word count for 
the parties’ briefs. 
Fourth, because we believe that this appeal should, if possible, be heard on the same schedule 
as the government’s related appeal in No. 03-5262, we would ask that the scheduling of the appeal in 
No. 03-5262 parallel the scheduling of the present appeal whether or not the Court orders expedition. 
BACKGROUND 
The backg-ound to the present order is set out in detail in our Motion for Stay Pending Appeal 
and subsequent filings. In brief, the American Indian Trust Fund Management Reform Act, enacted in 1994, provides that the Secretary of the Interior "shall account for the daily and annual balance of all 
funds held in trust by the United States for the benefit of * * * an individual Indian which are deposited 
or invested pursuant to the Act of June 24, 1938 (25 U.S.C. 162a)." Pub. L. 103-412, tj 102(a), 25 
U.S.C. 0 401 l(a). Approximately $400 million are held in trust in these accounts. 
Plaintiffs brought suit in 1996, asserting statutory and comiioii law claims with regard to the 
funds held in Individual Indian Money accounts. The district court dismissed plaintiffs' common law 
trust claims, but concluded that plaintiffs' "statutorily-based claims against the government can be 
brought under tlie MA." Cobell v. Babbitt, 91 F. Supp. 2d 1, 29 (D.D.C. 1999). The court issued a 
declaratory judgment holding that Interior had an enforceable duty to provide an accounting for UWI 
funds. The declaratory jud,ment also purported to declare breaches of trust obligations with respect to 
a variety of other matters, including staffing and computer support. u. at 49-50, 58. 
This Court largely affirmed, concluding that agency action had been improperly delayed under 
governing Adniinistrative Procedure Act ("AF)A") standards. Cobell v. Norton, 240 F.3d 1081, 1108 
(D.C. Cir. 2001). The Court explained, however, that the only actionable breach of duty was the 
failure to produce an accounting, and required tlie district court to amend its order to the extent that it 
purported to exercise jurisdiction over other related duties such as the management of computer 
systems. @. at 1106. 
The district court did not amend its order, however, and with the aid of a Court Monitor and a 
Special Master, launched detailed inquiries into computer systems, information security, and a vm'ety of 
other subjects. See Cobell v. Norton, 334 F.3d 1128,1134-35 (D.C. Cir. 2003). hi 2002, based on 
purported failures to iiii tiate a historical accounting and claimed inaccuracies in the court-ordered 
progress reports, the court held the Secretary of the Interior and an Assistant Secretary in contempt, 
-- Cobell v. Norton, 226 F. Supp. 2d 1 (D.D.C. 2002), concluding that "Secretary Norton and Assistant 
Secretary McCaleb can now rightfully take their place * * * in the pantheon of unfit trustee-delegates." 
- Id. at 161. 
This Coui-t reversed and vacated the contempt ruling, noting, inter alia, that the record 
demonstrated that "in her first six months in office Secretary Norton took significant steps toward completing an accounting," and that the court-appointed monitor had recognized that the Office of 
Historical Trust Accounting created by Secretary Norton had "'made more progress . . . in six months 
[July tlrsough December, 20011 than the past administration did in six years."' 334 F.3d at 1148. The 
Court explained that "[tlhese uncontested facts are inconsistent with a finding that Secretary Norton 
failed to" initiate a historical accounting. u. With respect to the remaining contempt charges, the Court 
described key aspects of the district court's reasoning as "mystifying," 2. at 1 149, and "inconceivable," 
- id. at 1150. 
Subsequently, the district court conducted a 44-day trial to consider, among other things, an 
accounting plan submitted by Lnterior which provided for the completion of an accounting within five 
years at a cost of $335 million. The court also considered plans, which it had ordered the parties to 
file, regarding a broad array of trust management matters. It then issued two opinions totaling 361 
pages and a "structural injunction" consisting of 18 pages of detailed requirements with regard to 
virtually all aspects of trust management. The court relied heavily on the findings of its contempt ruling 
because, in the district court's view, they had not been set aside by this Court. See 283 F. Supp. 2d 
66, 85 (D.D.C. 2003). The district court explained that it was issuing a structural injunction, rather 
than remanding to the agency, because it did not trust the Secretary or her subordinates to carry out 
their official duties. See id. at 225. The injunction rejects virtually every crucial premise of the 
government's accounting plan. 
Congress reacted swiftly to the district court's order, which the govemient estimates would 
require expenditures of at least $ 6billion. See Declaration of Associate Deputy Secretary of the 
Interior James E. Cason at 5, Exhibit A to appellants' motion for stay pending appeal. Congress 
declared that it had previously "stated in no uncertain terms that it would not appropriate billions of 
dollars for a historical accounting." H.R. Conf. Rep. 108-330, at 11 7 (Oct. 28, 2003). Congress 
stressed that it would be "devastating to Indian country" to divert billions of dollars in the manner 
required by the court's injunction. m. Believing that urgent action was required, Congress enacted 
Pub. L. 108-108, which provides: 
-3- [Nlothing in the American Indian Trust Management Reform Act of 
1994, Public Law 103-41 2, or in any other statute, and no principle of 
common law, shall be construed or applied to require the Department 
of the Lnterior to commence or continue historical accounting activities 
with respect to the Individual Indian Money Trust until the earlier of the 
following shall have occurred: 
(a) Congress shall have amended the American Indian Trust 
Management Refonn Act of 1994 to delineate the specific 
historical accounting obli,oations of the Department of the 
Lnterior with respect to the Individual Indian Money Trust; or 
(b) December 3 1, 2004[ .] 
The government sought a stay of the structural injunction pending appeal to this Court, urging 
that the “structural injunction” was plainly contrary to Pub. L. No. 108-108 and that the injunction had 
at all times been without legal basis. This Court issued an administrative stay and subsequently issued a 
stay pending appeal. Plaintiffs have now moved for expedition. 
believes that course is appropriate. 
accounting. 
DISCUSSION 
1. This case has long come loose from its moorings. An action to compel action unreasonably 
delayed has become a vehicle for an unprecedented judicial assumption of federal agency 
responsibilities without basis in law or in the voluminous record. The government is eager for a final 
resolution of this controversy and stands ready to proceed on an expedited schedule if the Court 
Nevertheless, the enactment of Pub. L. No. 108-108 raises questions as to the efficacy of 
expedition. Plaintiffs’ motion does not refer to the statute, and plaintiffs have at no time been able to 
explain how the injunction they seek to defend can plausibly be reconciled with the new legislation. 
Plaintiffs assert that some aspects of the illjunction are wholly divorced from the performance of an 
Motion for Expedition at 3. But to the extent that aspects of the injunction are 
unrelated to the performance of the accounting, they are beyond the jurisdiction of the district court. In 
any event, Congress plainly believed that the injunction flowed from the district court’s understanding of 
the accounting provision of the 1994 Act (as the district court had itself originally indicated, see Cobell 
v. Babbitt, 91 F. Supp. 2d at 29 (“statutorily-based claims against the government can be brought 
under the MA”), and as this Court had admonished. see Cobell v. Norton, 240 F.3d at 1 106, 1 108 
-4- (actionable duty was failure to perforni an accounting and district court order should be amended 
accordingly)). To require Interior to incur the costs of compliance would be flatly at odds with the 
purpose of Pub. L. No. 108-108. 
It is unclear at this juncture precisely what future action Congress may take, and Pub. L. No. 
108-108 remains in effect only until December 3 1, 2004. However, if the appeal is to be decided on a 
highly expedited schedule, it will clearly be governed by that statute. 
2. Plaintiffs urge that expedition is warranted because they experience ongoing harm as a result 
of this Court’s stay. On this basis, plaintiffs have presented this as an “emergency motion.” 
The government has addressed the balance of harms in moving for a stay and in opposing 
plaintiffs’ motion to vacate. The short answer is that Congress has weighed the benefits and burdens of 
the injunction and reached a conclusion directly contrary to plaintiffs’ assessment. Congress correctly 
concluded that the structural injunction “would require that vast amounts of funds be diverted away 
from other high-priority programs, including Indian programs.” H.R. Conf. Rep. 108-330, at 11 7. 
The committee stressed that this “would be devastating to Indian country and to the other programs in 
the Interior bill.” m. As the committee explained, the expenditure of billions of dollars on an 
accounting “would not provide a single dollar to the plaintiffs[.]“ m. 
Congress was not insensitive to the financial conditions of many accountholders. It recognized. 
however, that the diversion of billions of dollars would not improve those conditions and would 
adversely affect the Indian population. ’ 
3. If the Court orders plenary briefing on all issues presented by the structural injunction at the 
time of its issuance as well as its validity under Pub. L. No. 108-108, we would request an expansion 
of the schedule proposed by plaintiffs. Until the Court issues its ruling, the govenment will not know 
whether it should undertake the massive briefing required. We would ask that the government be given 
’ Moreover, as si,pificant as the income &om IIM accounts maybe collectively, about 96% ofthe 
193,800 land-based accounts receive less than $250 per year, a consequence of the repeated divisions 
of land interests. Declaration of Associate Deputy Secretary of the Interior James E. Cason at 2, Exli. A 
to appellants’ motion for stay pending appeal. 
-5- 40 days in whicli to file its opening brief and 21 days for its reply. We would also ask that the deferred 
Joint Appendix be due seven days after the filing of the reply brief, given the likely size of that document 
and the logistical problems involved in its assembly and reproduction. Finally, we would ask that the 
parties be given 20,000 words for their principal briefs and that the govenuiient receive 12,000 words 
for its reply. This appeal arises out of eight years of litigation and three trials. The order implicates 
fundamental principles of the limitations on judicial review of executive branch action, the interpretation 
of the 1994 Act, and a vast range of issues contained in the court’s extensive opinions. The opinions on 
appeal, published at 283 F. Supp. 2d 66, comprise over 220 pages. The contempt ruling, on which the 
court explicitly relied, is published at 226 F. Supp.2d 1, and comprises over 160 pages. The 
government will also be required to address Pub. L. No. 108- 108 and plaintiffs’ constitutional 
challenge. While the government will endeavor to be as concise as possible, the requested expansion 
of the word count is appropriate in these circumstances.2 
4. Finally, if the Court expedites this appeal, we would ask that it also expedite the related 
appeal, docketed No. 03-5262, in which the government seeks review of the district court’s 
preliminary injunction that asserts broad judicial control over Interior’s connection to the internet. The 
government’s challenge to both injunctions involves the same legal and factual background, and the 
injunctions are defective for many of the same reasons. Indeed, the internet injunction could easily have 
been included as one of the many disparate requirements contained in the Structural Injunction, 
Although this Court denied the governnient’s motion to consolidate the two appeals. we respectfully 
sugsest that the two cases should be heard on the same schedule if possible. Conversely, if the Court 
’ The briefing schedule on the appeal from the contempt order, No. 02-5374, citedbyplaintiffs, 
in fact proceeded on a very different basis than that proposed here. The government filed its opening brief 
together with aiiiotion to expedite. The government did not propose a specific deadline for appellee’s 
brief. 
-6- determines not to expedite the structural injunction appeal, it should also defer scheduling of No, 03- 
5262.3 
FEBRUARY 2004 
We note that the government has filed several submissions with the district court pursuant to the 
preliiiiiiiary injunction order which are now pending before the court. If the district court takes further 
adverse action after consideration ofthese submissions, expedition ofNo. 03-5262 may become necessary 
regardless of the scheduling of the structural injunction appeal. 
A-----. 
Respectfully submitted, 
PETER D. KEISLER 
Assistant Attorney General 
ROSCOE C. HOWARD, JR. 
United States Attorney 
ROBERT E. KOPP 
MARKB. STERNW 
THOMAS M. BONDY 
CHARLES W. SCARBOROUGH 
ALISA B. KLEIN 
(202) 5 14-5089 
Attorneys, Appellate Staff 
Civil Division, Room 9 108 
Deuartment of Justice 
601 D Street, N.W. 
Washington, D.C. 20530 
-7- class mail and by fax: 
Elliott H. Levitas 
Kilpatrick Stockton LLP 
607 14th Street, NW 
Suite 900 
Washington, D.C. 20005-201 8 
Phone: 202- 8 15-6450 
Fax: 202-585-0008 
Earl Old Person (pro se) 
Blackfeet Tnbe 
P.O. Box 850 
Browning, MT 594 17 
CERTIFICATE OF SERVICE 
I hereby certi& that on this 13th day of February, 2004, I am causing copies of the foregoing 
response to be sent to the Court by hand delivery and to be served on the following counsel by first 
I am also causing copies to be served on the following by first class mail: 
Keith M. Harper 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
(202) 785-4166 
Dennis Marc Gingold 
Law Office of Dennis Marc Gingold 
607 14th Street, N.W., Box 6 
Washington, D.C. 20005 
MARK B. STERN