IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
____________________________________
) 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
GALE A. NORTON, Secretary of 
the Interior, et al., 
) 
) 
)
)
)
)
) No. 1:96CV01285 
(Judge Lamberth) 
Defendants. 
)
) 
DEFENDANTS’ MOTION FOR LEAVE TO FILE A SURREPLY 
IN OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL DEPOSITION 
TESTIMONY OF ANSON BAKER AND REQUEST FOR SANCTIONS 
In their Reply In Support of Motion to Compel Deposition Testimony of Anson Baker 
And Request for Sanctions ("Reply"),1 Plaintiffs employ their most trusted litigation tactic: 
When their position is unsupported and insupportable, they engage in name-calling and mudslinging 
as a substitute for proper legal argument. In this vein, the Reply includes an allegation 
that ". . . the referral of the Associate Attorney General and five other Justice Department 
attorneys to the Disciplinary Panel of this Court [is] powerful evidence that they have neither the 
character nor fitness to continue as fiduciaries for the Trust." Reply at 1. This issue – whether a 
referral to a "Disciplinary Panel" is somehow evidence that Anson Baker (who is not a lawyer 
and was not referred to any such panel) should sit for more deposition questions from Plaintiffs' 
counsel – was not addressed in their original motion to compel, was not raised by Defendants in 
their Opposition, and is thus not properly a subject addressed in the Reply. See Board of Regents 
of the Univ. of Washington v. EPA, 86 F.3d 1214, 1221 (D.C. Cir. 1996) (to prevent 
1/ On May 19, 2004, Plaintiffs confusingly filed two papers with the same title. This Motion 
seeks leave to file a surreply in response to Plaintiffs' Reply with the Docket entry # 2571.
"sandbagging," issues not raised until the reply brief are waived); GFL Advantage Fund v. 
Colkitt, 216 F.R.D. 189, 197 (D.D.C. 2003) (if the reply raises new matters then the opponent 
may be "sandbagged" by not being able to answer). Indeed, Plaintiffs' personal attacks have no 
possible relation to the Motion to compel further deposition testimony from Anson Baker. 
However, because Plaintiffs have raised this new issue for the first time in a reply, Defendants 
should be permitted to file a surreply which responds to this new allegation.2 See Ben-Kotel v. 
Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003) (the district court "routinely" grants motions 
for leave to file a surreply when a party is "'unable to contest matters presented to the court for 
the first time' in the last scheduled pleading") (quoting Lewis v. Rumsfeld, 154 F. Supp. 2d 56, 
61 (D.D.C. 2001)). 
As set forth in the attached Surreply,3 the referral of the attorneys to the Committee on 
Grievances was not "evidence" of unfitness. The referral itself was only evidence that based 
upon the limited and incomplete information available, the Court felt further investigation was 
warranted. As the Court is aware,4 the Committee on Grievances has "completed its 
investigation." See, e.g., Letter from Laurel Malson, Chair, Committee on Grievances to Sandra 
Spooner (February 27, 2004) (attached as Exhibit 2). The Committee "has determined that no 
further action is warranted in this matter. Accordingly, the Complaint is discharged and the 
2/ Although Plaintiffs' allegation is "new" in the sense that it was not raised or discussed in the 
underlying motion or opposition, Plaintiffs have, of course, raised this allegation many previous 
times in equally meaningless contexts in other papers filed in this litigation. 
3/ The Surreply is attached as Exhibit 1. 
4/ The Committee chair advised undersigned counsel that the Court has been informed of the 
Committee's conclusions. 
2
matter is now closed." Id. Each of the individuals referred by the Court has received such a 
notice from the Committee. Because Plaintiffs' Reply makes new allegations not raised in their 
initial brief or Defendants' response, Defendants should be permitted to file a surreply that 
explains why Plaintiffs are mistaken.5 
CONCLUSION 
For these reasons, Defendants' Motion should be granted and Defendants' Surreply should 
be accepted for filing. 
Respectfully submitted, Dated: May 25, 2004 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
/s/ Sandra P. Spooner 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
5/ Plaintiffs' counsel has informed Defendants' counsel that Plaintiffs will oppose this Motion. 
3
CERTIFICATE OF SERVICE 
I hereby certify that, on May 25, 2004 the foregoing Defendants’ Motion for Leave to File 
a Surreply in Opposition to Plaintiffs' Motion to Compel Deposition Testimony of Anson Baker 
and Request for Sanctions was served by Electronic Case Filing, and on the following who is not 
registered for Electronic Case Filing, by facsimile: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
Fax (406) 338-7530 
/s/ Kevin P. Kingston 
Kevin P. Kingston
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
____________________________________
) 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
GALE A. NORTON, Secretary of 
the Interior, et al., 
) 
) 
)
)
)
)
) No. 1:96CV01285 
(Judge Lamberth) 
Defendants. 
)
) 
DEFENDANTS’ SURREPLY IN OPPOSITION TO PLAINTIFFS' 
MOTION TO COMPEL DEPOSITION TESTIMONY OF 
ANSON BAKER AND REQUEST FOR SANCTIONS 
In their Reply In Support of Motion to Compel Deposition Testimony of Anson Baker 
And Request for Sanctions ("Reply"),1 Plaintiffs allege that ". . . the referral of the Associate 
Attorney General and five other Justice Department attorneys to the Disciplinary Panel of this 
Court [is] powerful evidence that they have neither the character nor fitness to continue as 
fiduciaries for the Trust." Reply at 1. Although they do not elaborate, presumably Plaintiffs are 
referring to the Memorandum Opinion and Order of December 23, 2002, when the Court referred 
individuals to the District Court's Committee on Grievances. See Cobell v. Norton, 212 F.R.D. 
14, 24 (D.D.C. 2002). The referral itself was never evidence of anything, except that based upon 
the limited and incomplete available information the Court felt further investigation of the matter 
was warranted. That investigation has taken place and the Committee on Grievances has 
"completed its investigation." See, e.g., Letter from Laurel Malson, Chair, Committee on 
Grievances to Sandra Spooner (February 27, 2004) (attached as Exhibit 1A). The Committee 
1/ On May 19, 2004, Plaintiffs confusingly filed two papers with the same title. This Surreply 
responds to Plaintiffs' Reply with the Docket entry # 2571.
"has determined that no further action is warranted in this matter. Accordingly, the Complaint is 
discharged and the matter is now closed." Id. Each of the individuals referred by the Court has 
received such a notice from the Committee. 
The unspoken premise for any mention of the referral is the implied notion that, because 
attorneys representing Defendants were referred to the Committee, the Court cannot trust or 
believe anything those attorneys – or other attorneys aligned with them – represent to the Court 
and that therefore all argument – no matter how overwhelmingly persuasive – from Defendants 
should be ignored, and Plaintiffs thus granted any relief they request. The logic is faulty and the 
premise reprehensible. The referral to the Committee on Grievances – especially in light of the 
outcome of the subsequent investigation – provides no support for Plaintiffs' motion to compel 
further deposition testimony from Anson Baker and does not support their request for sanctions. 
CONCLUSION 
For these reasons, and for the reasons in Defendants' Opposition, Plaintiffs' Motion to 
Compel Deposition Testimony of Anson Baker should be denied. 
Respectfully submitted, Dated: May 25, 2004 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
/s/ Sandra P. Spooner 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
2
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
3
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
)
)
)
)
) 
GALE NORTON, Secretary of the Interior, et al., ) 
Defendants. 
)
) 
__________________________________________) 
ORDER 
This matter comes before the