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TES COURT OF AF’PEALS 
OF COLUMBIA CIRCUIT 
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NO. 03-5288 
I UNt I kU S IATkS UOURT OF APPEALS 
In re Gale Norton, 
Secretary of the Interior 
in her official capacity, 
Petitioner. 
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RESPONSE TO ORDER TO SHOW CAUSE 
INTRODUCTION AND SUMMARY 
In the face of overwhelming evidence of conduct requiring his recusal, Special Master 
Balaran submitted his resignation days before this Court was to hear argument on the 
government’s petition seeking his disqualification. 
Mr. Balaran’s resignation has mooted the question of his further participation in the case. 
But the resignation neither obviates the ongoing impact of his actions nor resolves the issues they 
have raised. In the name of “institutional reform,” and in a “quasi-inquisitorial, quasi- 
prosecutorial role” that this Court has disapproved, 334 F.3d 1128, 1142 (D.C. Cir. 20031, the 
Master gathered evidence by whatever means he saw fit, on any subject he perceived to have 
even a tangential relation to trust management generally, whether or not it concerned the claim 
for an accounting of IlM accounts that is the basis for this suit under Section 706(1) of the APA. 
The Master then framed voluminous reports for presentation to the court and the public that have 
served as functional indictments. These reports have charged Interior officials with deliberate 
concealment, obstruction, malfeasance, and incompetence. Indeed, the Master’s resignation letter repeats many of these baseless charges and adds new ones, insisting that the government 
sought his recusal not because of his own misconduct but to impede his quest for the “truth.” 
The Master’s departure from the case does not eliminate the effects of his work. Because 
the Master’s conduct has been incompatible with 28 U.S.C. 0 455, the Court should reverse the 
district court decision denying recusal, and direct the vacation of the “Interim Report” prepared 
with the assistance of NAID Vice President Mike Smith (Pet. Exh. 11, and the two subsequent 
reports issued in the months after the government file its recusal motion (Pet. Exhs. 14 & 15). 
It is impossible to assess the full impact of the Master’s actions on the development of 
this litigation, and, indeed, the Master’s conduct is itself a manifestation of the deeply mistaken 
premises on which this litigation has proceeded. Those issues are appropriately resolved in the 
government’s pending appeals from the structural injunction and from the injunctions 
terminating Interior’s internet communications. See No. 03-53 14 (appeal from structural 
injunction) (opening brief filed April 6,2004); Nos. 03-5262,04-4084 (appeals from internet 
injunctions) (opening brief filed April 6,2004) (scheduled for argument September 14,2004). 
As we demonstrate in those appeals, quite apart from the question of bias, the district court has 
acted without foundation in law or fact. There is no longer any basis for continuing jurisdiction 
under Section 706( 1) of the H A , and the class action lawsuit should be dismissed. 
Those appeals do not, however, reach the question of whether Mr. Balaran’s conduct 
comported with 28 U.S.C. 0 455, which can be addressed only in the context of this petition. At 
a minimum, to the extent that the Court believes that the relief granted on the pending appeals 
may bear on the exercise of its mandamus jurisdiction, it should defer further consideration of the 
mandamus petition pending resolution of those appeals. If this Court, after considering the 
-2- government’s pending appeals, were nevertheless to approve the district court’s further 
continuing jurisdiction, resolution of the mandamus petition would be imperative. The district 
court, which has presumed to effect an indefinite takeover of trust operations, has made clear that 
the case will outlast the court’s life tenure. 226 F. Supp. 2d 1, 161 (D.D.C. 2002). The 
actions of a biased judicial officer cannot be allowed to infect the case indefinitely. 
BACKGROUND 
On April 21, 2003, the Special Master, after investigating charges brought by Native 
American Industrial Distributors, Inc., a government contractor, released an Interim Report 
containing his findings and conclusions. Pet. Exh. 1. The first footnote of the report indicated 
that it was based on information “obtained outside of normal channels and to which the parties 
may have no familiarity.” A review of the Master’s billing records noted the paid assistance of 
“MSS.” These notations proved to refer to Mike S. Smith, who had been Vice President of 
NAlD at the time it sought to intervene in this litigation to press its complaint against Interior. 
The government moved for the Special Master’s disqualification in May 2003. Despite 
repeated requests for expedition, neither the Special Master nor the district court responded to 
that motion until ten months later, after the government’s mandamus petition had already been 
filed with this Court. In the interim, the Master continued in his “quasi-inquisitorial, quasi- 
prosecutorial role,” 334 F.3d at 1142, investigating on his own initiative whatever matters he 
perceived to have any relation to trust reform. Asserting “‘the authority of institutional reform 
speciai masters to uncover facts and collect evidence via ex parte contacts with parties and 
counsel,’” he issued two new reports charging the government with wrongdoing. See Site Visit 
Report of the Special Master to the Dallas, Texas Office of the Minerals Revenue Management 
-3- Division of the Department of the Interior’s Minerals Management Service (undated), at 1 (Pet. 
Exh. 15) (quoting Order of March 29,2002 (dkt. # 1235), cited in Cobell v. Norton, 237 F. Supp. 
2d 71, 75 (D.D.C. Jan. 17,2003)). See also Site Visit Report of the Special Master to the Office 
of Appraisal Services in Gallup, New Mexico and the Bureau of Indian Affairs Navajo Realty 
Office in Window Rock, Arizona (Aug. 20,2003), at 38 (dkt. #2219) (Pet. Exh. 14). 
The Special Master finally responded to the government’s recusal motion with a 
statement filed in district court, shortly before the deadline this Court had set for plaintiffs to 
respond to the government’s mandamus petition. The Master left it to plaintiffs to provide this 
Court with a copy of his filing and subsequent submissions. 
The district court did not rule on the recusal motion until after briefing on the 
government’s petition in this Court was complete. The court issued its ruling on March 15, 
2004, together with its ruling requiring immediate disconnection from the internet. The court 
accepted all arguments advanced by the Special Master, echoing its defense of the unorthodox 
conduct of former Special Master-Monitor Kieffer, whose appointment had been vacated by this 
Court. See Order of March 15,2004,2004 WL 515491; 334 F.3d at 1142-45. 
Nevertheless, after this Court scheduled argument on the government’s petition, the 
Master resigned. The Master declared that the district court had been correct in finding the 
government’s recusal motion “fiivolous” and in “suggesting that it was Interior that acted 
improperly by impeding my investigation and that Interior had an ulterior motive for seeking my 
removai.” Letter at 1. Referring to his ex r?arte visit on September 19, 2003 to the Mineral’s 
Management Services Dallas office, the Master insisted that he was asked to leave because his 
recent “findings” had “implicated the agency’s systemic failure to properly monitor the activities 
-4- of energy companies leasing minerals on individual Indian lands.” a. at 2. The Master declared 
that his findings “could cost the very companies with which senior Interior officials maintain 
close ties, millions of dollars.” m. He further announced that the government’s reasons for 
seeking disqualification “bear no relationship to the reasons it offers in its recusal motion, but 
rather to my discovery of significant problems in its appraisal and record-keeping practices.” a. 
at 3. His investigation into these matters, the Master asserted, “might well result in energy 
companies being forced to repay significant sums to individual Indians. Lnterior could not let this 
happen.” Id. at 3.’ 
The district court accepted the Master’s resignation on April 6, 2004 and ordered that the 
resignation letter be made part of the record. In a separate order, the court required the 
government to pay over $65,000 in attorney’s fees incurred by the Master with respect to the 
disqualification issue in the period commencing January 28, 2004.2 On April 6,2004, plaintiffs 
filed a suggestion of mootness with this Court. 
’ The Master made these charges without mentioning the contradictory evidence in the 
record. For example, in March 2002, the Secretary transferred the authority to conduct valuation 
and appraisal of Indian trust lands from the Bureau of Indian Affairs to the Office of the Special 
Trustee to “ensure the independence, accountability, and oversight of the Indian trust lands 
valuation and appraisal staff.” Eleventh Quarterly Report, at 81 (dkt. # 1586). Subsequently, all 
valuation and appraisal functions for the Department were consolidated into a single Office of 
Appraisal Services (OAS) located within the Office of the Special Trustee. An independent 
review of OAS was conducted in 2003 by the Appraisal Foundation. In its August 2003 report, 
the Appraisal Foundation concluded that “the degree of appraisal independence within OAS is 
very good, with virtually no reports of pressure being placed on staff or contract fee appraisers to 
achieve preconceived value estimates.” Fifteenth Quarterly Report, at 6 1 (dkt. # 2356). 
* The district court also ordered payment of fees to Mr. Balaran through April 30,2004. 
Mr. Balaran has received over $1,775,000 in fees (exclusive of expenses and payment for 
assistance and experts, which bring the total bill for his services to over $3,800,000). 
-5- ARGUMENT 
The Special Master’s Resignation Does Not Obviate The 
Ongoing Impact Of His Actions Or Resolve The 
Fundamental Issues They Raise. 
The Special Master has resigned. Although the issue of his continuing participation in 
the case is thus moot, that resignation does nothing to address the impact of a biased judicial 
officer on the course of this litigation. 
A. The Special Master has essentially functioned as a prosecutor and grand jury - a role 
“unknown to our adversarial legal system,” 334 F.3d at 1142 - creating evidence and issuing 
indictments with regard to any matter that, in his view, had some relationship to trust accounting. 
In the Tnterim Report of April 21,2003 (Pet. Exh. 1) , he purported to find contumacious 
misconduct. In his report regarding his visit to the Texas Office of the Minerals Revenue 
Management Division (Pet. Exh. 1 9 , the Master purported to find mismanagement with regard 
to Interior’s oversight of oil leases. In his report regarding his visit to the Office of Appraisal 
Services in Gallup, New Mexico (Pet. Exh. 14), the Master purported to find mismanagement 
with regard to appraisals of rights-of-way on Indian lands, and charged present officials with 
malfeasance even though the appraisals he purported to review were completed before they took 
office. The reports were developed entirely outside of the adversarial process, In his resignation 
letter, made part of the record by the district court, Mr. Balaran charges that the recusal motion 
filed by the government in May 2003 was a sham intended to prevent him from issuing the 
reports of his investigations. 
The Master’s resignation does not remove the string of indictments, their consequences in 
this litigation, and the seeds of mistrust that his reports have sown among trust beneficiaries and 
-6- the public generally. Because Mr. Balaran’s conduct has been incompatible with the standards of 
28 U.S.C. 0 455, the Court should reverse the district court’s denial of the government’s recusal 
motion and direct the vacation of the Interim Report of April 2 1,2003, and the two reports issued 
after the government moved for Mr. Balaran’s recusal. generally United States v. Microsoft 
Cog., 253 F.3d 34, 116 (D.C. Cir. 2001) (“prospective disqualification of the offending judge” is 
the “minimum” remedy for conduct that calls the judge’s impartiality into q~estion).~ 
B. It is impossible to trace the full impact of the Master’s conduct which, in turn, is a 
manifestation of the deeply mistaken premises on which this litigation has proceeded. Those 
issues are properly addressed in the related appeals from the structural injunction and the internet 
injunctions, in which the government’s opening briefs were filed on April 6,2004. The 
injunctions, like Mr. Balaran’s investigations, rest on fundamentally unsound assumptions. They 
assume that the court’s limited continuing jurisdiction iii a suit under Section 706(1) of the APA 
encompasses a general power to effectuate reform of any matter pertaining to Indian trusts, 
whether or not it concerns a claim to produce an accounting of IIM accounts that furnished the 
basis for this suit. They assume that the declaratory judgment affirmed by this Court in 2001 
constitutes a decree of liability with regard to trust management generally, to be enforced through 
extraordinary means; and that, in the face of all evidence to the contrary, the executive branch 
officials accountable to the public and to Congress are irredeemable wrongdoers to be 
circumvented or subordinated in the quest for reform. As we show in the pending appeals, these 
In earlier filings, plaintiffs urged that mandamus relief was inappropriate because the 
district court had not yet ruled on the government’s recusal motion. As noted, the court has since 
ruled, concluding that the Master’s conduct was wholly unobjectionable and was, indeed, 
commendable. 
-7- assumptions are flatly at odds with both of this Court’s decisions in this case and with the 
established separation of powers principles they reflect. The injunctions are without basis in law 
or fact, and events have long overtaken the basis for the limited continuing jurisdiction under the 
APA that this Court approved in 2001. But even if the theoretical basis for the district court’s 
continuing jurisdiction had not ceased to exist, the court’s abuse of its jurisdiction would require 
that its jurisdiction be terminated and that the class action lawsuit be dismissed. 
Those appeals do not, however, address the separate question of bias, which can only be 
addressed on this petition. To the extent that the Court believes that the disposition of those 
appeals may bear on the exercise of its mandamus jurisdiction, it should, at a minimum, defer 
further consideration of the mandamus petition pending resolution of the appeals. If the Court, 
after considering the government’s appeals, were nevertheless to approve the district court’s 
further continuing jurisdiction, the importance of resolving the issues raised by the petition 
would assume particular urgency. The series of indictments by a biased judicial officer and the 
court’s approval of the Master’s conduct cannot be permitted to remain in place for the indefinite 
duration contemplated by the district court for this litigation. 
-8- Respectfully submitted, 
PETER D. KEISLER 
Assistant Attorney' General 
GREGORY G. KATSAS 
Deputy Assistant Attorney General -&, ROBERT E. KOPP 
MARKB. STERN 
THOMAS M~ BONDY 
CHARLES W. SCARBOROUGH 
ALISAB.KLEIN 
(202) 5 14-5089 
Attorneys, Appellate Staff 
Civil Division, Room 9 108 
Department of Justice 
601 D Street, N.W. 
Washington, D.C. 20530 
APRIL 2004 
-9- By hand delivery: 
CERTIFICATE OF SERVICE 
I hereby certify that on this 16th day of April, 2004, I am causing the foregoing Response 
To Order To Show Cause to be served on the following in the manner specified: 
The Honorable Royce C. Lamberth 
United States District Court 
United States Courthouse 
Third and Constitution Ave., N.W. 
Washington, D.C. 20001 
Douglas B. Huron 
Heller, Huron, Chertkof, Lerner, Simon & Salsman 
1730 M Street, NW 
Suite 412 
Washington, D.C. 20036 
202-293-8090 
(Attorney for Special Master Balaran) 
Keith M. Harper 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
(202) 785-4166 
G. William Austin 
Kilpatrick Stockton 
607 14th Street, N.W., Suite 900 
Washington, D.C. 20005 
(202) 508-5800 
Bv federal express, overnight mail: 
Elliott H. Levitas 
Law Office of Elliott H. Levitas 
i i00 Peachtree Street 
Suite 2800 
Atlanta, GA 30309-4530 
(404) '8 15-6450 Bv first class mail: 
Dennis Marc Gingold 
Law Office of Dennis Marc Gingold 
607 14th Street, N.W., Box 6 
Washington, D.C. 20005 
Earl Old Person (pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
+ Alisa B. Klein