TES COURT OF APPEALS 
OF COLUMBIA CIRCUIT 
ELOUISE PEPION COBELL, et al., j 
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1 
Plaintiffs- Appellees? 
V. NO. 04-5084 
[Civil Action No. 96-1285 (D.D.C.)] GALE A. NORTON, 
Secretary of the Interior, et al., 
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j 
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Defendants- Appellants. 
REPLY IN SUPPORT OF GOVERNMENT'S MOTION FOR 
STAY PENDING APPEAL AND OPPOSITION TO 
PLAINTIFFS' MOTION TO VACATE ADMINISTRATIVE STAY 
Pursuant to this Court's temporary stay, the Department ofthe Interior has resumed electronic 
communications with the rest of the world. Databases relied on by the public and by regulators have 
been restored, critical procurement functions have proceeded? distribution of royalty payments to 
Indian tribes continues unimpeded, and educational services are once more being provided to tens 
of thousands of Indian children. Norton Decl., pp. 1-2; Tipton Decl., pp. 1-9. 
The termination of the stay would stop these and many other operations in their tracks. 
Plaintiffs do not suggest otherwise. 
1. Without addressing the immediate and extraordinary injury to the government and the 
public that will occur in the absence of a stay, plaintiffs assert that the stay would impair the integrity 
of IITD. The district court cited no evidence of such harm in issuing its injunctions and plaintiffs 
do no better. 
Instead, plaintiffs cite various statements made in 2001 , at the time when the Special Master 
first "liacked" into an Interior computer system and the district court issued a TRO severing Interior's 
electronic links to the world. There is neither room nor need here to address plaintiffs' account of 
what happened in 2001. As plaintiffs do not dispute, to avert an indefinite shutdown, Interior agreed 
to a Consent Order, entered on December 17, 2001, which established a procedure for restoring 
internet coimections. The Colisent Order provided that offices would be restored to the internet upon agreement by the Special Master that the systems were adequately secure or that they neither housed 
nor provided access to IITD. The computer systems at issue here are those that were restored to the 
internet pursuant to the Consent Order. They are thus the very systems that the court recognized 
were adequately secure or did not house or provide access to IITD. 
In issuing its July 2003 preliminary injunction, the court citedno evidence that the restoration 
of these systems was mistaken or that their restoration had resulted in any threat whatsoever to IITD. 
To the contrary, the court declared that “plaintiffs have not demonstrated to the satisfaction of the 
Court that the reconnected systems are not presently secure from unauthorized Internet access.” Exh. 
2, at 30. That recognition alone should have been dispositive: it would, of course, be plaintiffs’ 
burden to establish entitlement to injunctive relief, not Interior’s burden to demonstrate that its 
communications should remain unsevered. Moreover, the voluminous certifications and supporting 
documents filed with the court pursuant to its July 28,2003 order detail the comprehensive measures 
taken to enhance computer security in the systems at issue. See, e.g, Certification of Robert E. 
Brown, Acting Director, Minerals Management Service at 3 1 (listing security measures to prevent 
unauthorized access including firewall and router protections, regular updates with security patches, 
mandatory IT security training, and mandatory password changes every 60 days) (filed Aug. 11, 
2003). The court here has thus ordered agency-wide disconnection with no evidence of a security 
problem and without reviewing the massive investment in security since 2001. The magnitude of 
its error is extraordinary. 
2. Plaintiffs’ effort to construct a legal basis for the injunction underscores the extent to 
which the court’s exercise of its continuing jurisdiction has paid no heed to the nature of the claim 
at issue, settled limitations on judicial review of agency action, and this Court’s mandate. It 
proceeds from, the same mistaken misconception of the court’s role in this case as the sweeping 
structural injunction also on appeal to this Court. (The government’s appeal from the structural 
injunction, No. 03-5314, is proceeding on the same expedited briefing schedule as the appeal from 
the July 2003 preliminary injunction, No. 03-5262. Because the March 15,2004 injunction purports 
to “supersede” and “replace” the July 2003 injunction, we have asked that the appeals froin those 
-2- two orders be consolidated so that the appeals from all related orders can be heard expeditiously.) 
As this Court emphasized in its first decision in this case, a court cannot, consistent with the 
separation of powers, order "wholesale improvement of [a] program by court decree, rather than in 
the offices of the Department [of the Interior] or the halls of Congress, where programmatic 
improvements are normally made." Cobell v. Norton, 240 F.3d 1081, 1108-09 (D.C. Cir. 2001) 
(quoting Ltijan v. National Wildlife Federation, 497 U.S. 871, 891 (1990)). Thus, as this Court 
declared, the only actionable breach of duty at issue in this APA action was the unreasonable delay 
in the performance of an accounting, id. at 11 06. The Court thus approved only limited continuing 
jurisdiction, cautioning the district court "to be mindful of the limits of its jurisdiction," ;d. at 11 10, 
and explaining that its jurisdiction was confined to determining whether future steps taken by Interior 
were so defective that they would "necessarily delay rather than accelerate the ultimate provision of 
an adequate accounting," m. 
In its March 15 order, as in its structural injunction, the district court has paid no heed to this 
directive or the settled principles that it reflects. Instead, the court has sought to assert authority over 
the structure and day-to-day operations of the Department of the Interior without even a nominal 
anchor in any statutory command. As plaintiffs do not dispute, the 1994 Act, the only statute at issue 
in this case, contains no reference to computer security. It provides no measure for determining what 
level of security is adequate, and does not authorize a court to respond to security problems by 
disconnecting communications networks. Nor was there a basis for concluding, even in 200 1 , that 
the Special Master's ability to "hack" into a computer system had significant relation 10 the 
performance of an accounting. And under no circumstances could the statute be construed to 
authorize injunctions that disconnect agency communications. 
In the view of plaintiffs and the district court, the March 15 injurxticn, like the stmctural 
injunction, is justified as the "long-overdue institutional reform of the troubled Trust." Opposition 
at 1. But, as discussed, this is not and could not be an action to achieve wholesale improvement of 
the trust by court decree. Plaintiffs' efforts to avoid the impact of Pub. L. 108-108 reflect the same 
-3- mistaken reasoning.’ That statute addresses the only claim in this case - the perfoiinance of an 
accounting - and provides that nothing in the 1994 Act “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 * * * .,’ Plaintiffs insist that the legislation is inapplicable 
because it “simply does not extend to ongoing trust management and prospective trust reform.” 
Opposition at 17. In other words, plaintiffs fi-ankly acknowledge that the injunction at issue is not 
premised even on the broadest understanding of “accounting activities.” The injunction is thus 
without a legal basis in this suit. 
Moreover, the district court’s willingness to order relief unrelated to the sole legal claim at 
issue does not defeat the application of the legislation. In enacting Pub. L. 108-108, Congress 
would presumably have been aware of the fact that the district court dismissed plaintiffs’ common 
law claims at the time that it issued its 1999 declaratory judgment, and that this Court had left no 
doubt that the only actionable duty at issue is the performance of an accounting. The magnitude of 
the district court’s error cannot be transformed into a basis for frustrating an Act of Congress. 
3. Plaintiffs re-assert constitutional arguments previously advanced in their unsuccessful 
opposition to a stay of the structural injunction. Plaintiffs do not dispute that Congress has authority 
to amend the substantive law that provides the basis for a forward-looking injunction. See, e.g., 
Miller v. French, 530 U.S. 327, 344 (2000); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 232 
(1995); Robertson v. Seattle Audubon Soc’y, 503 U.S. 429,432-35,441 (1992). Instead, they argue 
that the temporary nature of Pub. L. 108-108 (specifically, the inclusion of a December 31, 2004 
‘Plaintiffs colorfully refer to the legislation as the “Midnight Rider” provision and suggest 
that the measure is somehow suspect because it was introducedby the Conference Committee. They 
neglect to mention that the House and Senate submitted their versions of the Interior appropriations 
bill before the district court issued its structural injunction on September 25, 2003. See 149 Cong. 
Rec. S12004 (Senate version passed on September 23, 2003); 149 Cong. Rec. H7104-05 (House 
version passed on July 17, 2003). After the Conference Committee introduced the amendment on 
October 27, 2003, the House debated the measure for three days, 
H9992-95, H10197-203, and ultimately aFproved it on October 30. u. at Hi0205. The Senate 
149 Cong. Rec. H9970-71, 
followed suit on November 3. 149 Cong. Rec. S13785-90. 
-4- expiration date) suggests that the provision “cannot sensibly be regarded as a substantive amendment 
of the law.” Opposition at 18. 
The limited duration of Pub. L. 108-108 does not make it an unconstitutional usurpation of 
judicial authority. Many statutes contain “sunset” provisions and most appropriations measures last 
only for the period of appropriations, whether or not an expiration date is explicitly stated in the 
statute itself. Indeed, in Robertson, the appropriations provision at issue “expired automatically on 
September 30, 1990.” 502 U.S. at 433. 
Plaintiffs alternatively suggest that Pub. L. 108-108 deprives them “of their vested property 
interests without due process of law.” Opposition at 19. But plaintiffs have no “vested right” to 
either an accounting or to the “prospective trust reform” they claim to be seeking. Opposition at 17. 
Even a cause of action for damages does not vest until it has been reduced to an unreviewable final 
judgment. See, e.g, Lyon v. Agusta SPA, 252 F.3d 1078, 1086 (9th Cir. 2001) (“although a cause 
of action is a species of property, a party’s property right in any cause of action does not vest until 
a final unreviewable judgment is obtained”) (quotation marks and citation omitted). And as this 
Court has observed, the legal basis for prospective relief may be revised by Congress at any point. 
See, s, National Coalition To Save Our Mall v. Norton, 269 F.3d 1092, 1097 (D.C. Cir. 2001) 
(“although an injunction may be a final judgment for purposes of appeal, it is not the ‘last word of 
the judicial department’ because any provision of prospective relief ‘is subject to the continuing 
supervisory jurisdiction of the court, and therefore may be altered according to subsequent changes 
in the law”’) (quoting Miller, 530 U.S. at 347). 
4. As they did in opposing the stay ofthe structural injunction, plaintiffs argue that this Court 
has no authority to issue a stay until the district court rules on the motion pending before it. See 
Opposition at 15. Iiule 8 of the Federal ?.ules of Appellate Procedure requires that a stay ~ o t i o n be 
filed in district court. It does not make a ruling on the motion a predicate for appellate jurisdiction. 
Plaintiffs do not contest that the government filed a stay motion first in the district court, and only 
subsequently sought relief from this Court. The district court’s injunction warranted emergency 
-5- relief, and an appellate court is authorized to provide such relie-fas long as a stay motion is filed in 
district court. 
5 . Plaintiffs seek to defend the district court’s refusal even to consider the 12 certifications 
and hundreds of pages of supporting documents, detailing in comprehensive fashion the steps taken 
to date regarding the security of IITD. Plaintiffs make no attempt to reconcile the court’s ruling with 
the express language of 28 U.S.C. 1746 and LCvR 5.l(h), which provide no support for the court’s 
ruling. Moreover, as discussed in our motion, the July 28,2003 order required that the certifications 
comply with Fed. R. Civ. P. 11. Plaintiffs do not argue that the certifications failed to comport with 
Rule 11’s certification standards; indeed, plaintiffs disregard Rule 11 entirely. In any event, as we 
also discussed in our motion, even if the court believed that a procedural error existed, the 
appropriate course would have been to allow the agency to correct that error. Under no 
circumstances could the court properly seize on a purported error o f this kind to sever an agency’s 
electronic communications. 
While defending the district court’s refusal to look at the relevant information that it had 
required, plaintiffs invoke various reports issued in late 2003 that reflect no light on the matter at 
issue here. See Opposition at 6-7. As we explained in our motion, these reports do not focus on 
improper access to data by unauthorized persons through the internet, and they address no threat to 
IITD in particular. See Stay Motion at 14-1 5 . The congressional subcommittee gave a grade of “F” 
in overall computer security to htenor and the Departments of Justice, State, Energy, Homeland 
Security, Health and Human Services, Agiculture, and Housing and Urban Development. The 
subcommittee’s scorecard did not address the question of unauthorized access to data via the internet. 
It was, instead, concerned with many broad issues encompassed under the rubric of “computer 
security.” No one disputes that these broad issues present significant challenges. They also afford 
absolutely no basis for the relief ordered here. 
-6- CONCLUSION 
The district court's March 15, 2004, injunction sliouId be stayed pending appeal. 
Respectfully submitted, 
PETER D. KEISLER 
Assistant Attorney General 
ROSCOE C. HOWARD, JR. 
United States Attorney 
ROBERT E. KOPP 
MARKB. STERN 
THOMAS M. BONDY 
CHARLES W. SCARB 
ALISA B. KLEIN 
(202) 5 14-5089 
Attorneys, Appellate Staff 
Civil Division, Room 9108 
Department of Justice 
601 D Street, N.W. 
Washinqton, D.C. 20530 
MARCH 2004 Earl Old Person (pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
CERTIFICATE OF SERVICE 
I hereby certify that on this 3 1st day of March, 2004, I caused copies of the foregoing reply 
to be sent to the Court and to the following by hand delivery: 
The Honorable Royce C. Lamberth 
United States District Court 
United States Courthouse 
Third and Constitution Ave., N.W. 
Wzshington, D.C. 2000! 
Keith M. Harper 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
(202) 785-4166 
and to the following by federal express, overnight mail: 
Elliott H. Levitas 
Law Office of Elliott H. Levitas 
1100 Peachtree Street 
Suite 2800 
Atlanta, GA 30309-4530 
(404) 815-6450 
and to the following by regular, first class mail: 
Dennis Marc Gingold 
Law Office of Dennis Marc Gingold 
607 14th Street, N.W., Box 6 
Washington, D.C. 20005 
THOMAS M. BONDY v