f 
IN THE UNITED STATES DISTRICT COURT 
ELOUlSE PEPION COBELL, al., 
1 
Plaintiffs, 
1 
v. Case No. 1:96CV01285 
(Judge Lamberth) 
GALE A. NORTON, Secretary of the Interior, 1 
) 
1 
al., 
) 
Defendants. 
INTERIOR DEFENDANTS’ MOTION TO STRIKE 
NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT 
OF PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND 
CONCLUSIONS OF LAW DATED AUGUST 4,2003 and IN SUPPORT 
OF PLAINTIFFS’ PLAN FOR DETERMINING ACCURATE BALANCES 
IN THE INDIVIDUAL INDIAN TRUST, DATED JANUARY 6,2003 
Pursuant to Federal Rule of Civil Procedure 12(f), Interior Defendants respectfully move to 
strike Plaintiffs’ Notice of Supplemental Authority in Support of Plaintiffs’ Proposed Findings of Fact 
and Conclusions of Law dated August 4, 2003 and In Support of Plaintiffs’ Plan for Deterniining 
Accurate Balances in the lndividual Indian Trust, dated January 6,2003 (September 3,2003) (“Notice 
of Supplemental Authority” or “Notice”).’ The supplemental “authority” submitted by Plaintiffs is the 
Site Visit Report of the Special Master to the Office of Appraisal Sewices in Gallup, New Mexico and 
the Bureau of Indian Affairs Navajo Realty Office in Window Rock, Arizona (“Site Visit Report”), filed 
on August 20, 2003. Because the Site Visit Report is not authority, and because Plaintiffs’ Notice is an 
’ Counsel for Interior Defendants has consulted with counsel for Plaintiffs, who stated that 
Plaintiffs will oppose this motion. illegitimate effort to place evidence before the Court after the record of the Phase 1.5 trial has been 
closed, Plaintiffs’ Notice of Supplemental Authority should be stricken. 
The Court Should Strike Plaintiffs’ Notice of Supplemental Authority 
Plaintiffs mischaracterize the Special Master’s Site Visit Report as “supplemental authority” to 
provide support for pleadings filed in conjunction with the recently completed Phase 1.5 trial. The Site 
Visit Report contains the Special Master‘s opinions and conclusions about Interior’s appraisal practices. 
Plaintiffs’ Notice should be stricken because it is fatally defective for three independent reasons: (1) 
Plaintiffs are improperly attempting to supplement the record of the Phase 1.5 trial; (2) the Site Visit 
Report is merely advisory; and (3) the Site Visit Report is not “authority.” Any one of these defects 
calls for Plaintiffs’ Notice to be stricken. 
A. Plaintiffs’ Notice Is An Impermissible Attempt To Supplement the Phase 1.5 
Trial Record 
The record of the Phase 1.5 trial, which concluded on July 8, 2003, is now closed. No more 
evidence may be introduced. Nonetheless, Plaintiffs improperly attempt to supplement the record by 
characterizing evidence as “supplemental authority.” Plaintiffs specifically state: 
[Special Master] findings hrther confirm findings of this Court that an 
accounting is impossible, the Trial 1.5 testimony of plaintiffs’ experts, 
and the validity of plaintiffs’ plan to utilize the most accurate and reliable 
data and other information to restate the individual Indian trust 
balancm2 
This statement is a misrepresentation of fact. This Court has already ruled that appraisals “are 
important for evaluating whether the trustee is managing the underlying assets prudently,” but “asset 
management is not part of this lawsuit.“ Cobell v. Babbitt, 91 F. Supp. 2d 1, 18 (D.D.C. 1999). 
Plaintiffs thus mischaracterize the facts and disregard the law of the case by contending that the 
(continued.. .) 
- 2 - Accordingly, plaintiffs submit the Navajo Report as supplemental 
authority for the adoption of Plaintiffs’ Proposed Findings of Fact and 
Conclusions of Law with respect to: the inadequacy of defendants’ 
proposed “accounting” plan; the adoption of Plaintiffs’ Plan on 
Determining Accurate Balances for the Individual Indian Trust as a 
reasonable methodology for calculating and determining accurate 
balances in the Individual Indian Trust; and, the setting of a date certain 
for Trial 2 without further delay. 
Plaintiffs’ Notice at 2 (footnote omitted) 
Plaintiffs cite no authority for their naked attempt to supplement the closed record of the Phase 
1.5 trial. Such an effort must be preceded by a motion that demonstrates good cause to reopen or 
supplement a trial record. See, u, Ln Re Weiner, 161 F.3d 1216 (9th Cir. 1998) (bankruptcy court’s 
decision on motion to reopen or to supplement trial record is reviewed for abuse of discretion); S.E.C. 
v. Rogers, 790 F.2d 1450 (9th Cir. 1986) (court of appeals reviews district court’s denial of motion to 
reopen or supplement trial record for abuse of discretion); Pottinger v. City of Miami, 810 F. Supp. 
155 1 (S.D. Fla. 1992) (unopposed Motion to Supplement Trial Record with additional exhibits 
granted); Pathman Const. Co. v. United States, 10 C1. Ct. 142 (1986) (Plaintiffs motion to supplement 
the record granted); Good v. Weinberaer, 389 F. Supp. 350 (W.D. Pa. 1975) (Secretary of 
Department of Defense filed a motion to reopen the trial record); see also Fed. R. Civ. P. 59(a) 
(motion for new trial may permit the taking of additional testimony); Fed. R. Civ. P. 60(b)(2) (motion 
for relief based on newly discovered evidence). As demonstrated above, no good cause exists for such 
a motion. 
2(...continued) 
appraisals discussed in the Special Master’s report have some relevance to the accounting issues now 
before the Court when they are plainly inapposite. 
- 3 - B. The Special Master's Site Visit Report Is Advisory 
Plaintiffs' Notice is defective for a second reason. Special master reports are advisory until 
they are acted upon by a court. United States v. Raddatz, 447 U.S. 667, 683 n.11 (1980); Basev v. 
Gallagher, 87 US. 670, 680 (1874); United States v. Microsoft Cop., 147 F.3d 935, 955 (D.C. Cir. 
1998) ("a special master's findings and conclusions are always advisory") (emphasis in original). Thus, 
the Special Master's Site Visit Report is not a judicial opinion, memorandum, or order, and it is not 
proper to cite it in a notice of supplemental authority. Plaintiffs are attempting to have the Court attach 
weight to a report that, under the law, is of no effect. D.M. W. Contracting Co. v. Stolz, 158 F.2d 405, 
407 (D.C. Cir. 1947) ("The report of the master is advisory only and is without effect until confirmed 
by the court."). 
At best, Plaintiffs' filing is premature and relies upon a defective and deficient report. As noted 
in Defendants' response to the Special Master's Site Visit R e p ~ r t , ~ which asks the Court to reject the 
report in toto and which is incorporated herein by reference, the report in question contains findings that 
are based on an incomplete record, relies upon extra record documents, was issued without affording 
Interior Defendants any hearing or other hint of the requisite procedural protections, and principally 
appraisal valuations and alleged underpriced right-of-way leases) that are involved other matters (k., 
The full title of Interior Defendants' response, filed September 4,2003, is "Interior 
Defendants' (1) Response and Objections to Special Master's Site Visit Report to the Office of 
Appraisal Services in Gallup, New Mexico and the Bureau of Indian Affairs Navajo Realty Office in 
Window Rock, Arizona ('Site Visit Report') and (2) Opposition to Plaintiffs' Motion to Adopt Site Visit 
Report." 
- 4 - plainly beyond this Court's subject matter jurisdiction. Last but not least, the author of this report, 
Special Master Balaran, is demonstrably biased and is the subject of a motion for disqualification filed 
over three months ago, on May 29,2003. 
C. 
Notices of supplemental authority are routinely used to advise or inform courts of judicial 
opinions or orders, or other authorities such as statutes or regulations, believed to be relevant to a 
proceeding in litigation. The use of a notice of supplemental authorities is prescribed in 
Federal Rule of Appellate Procedure 280): 
Although it applies to filings in appellate proceedings, the rule's language is nonetheless instructive 
because it reflects and corroborates the plain meaning of the word "authority" in the context of legal 
proceeding^.^ Notices of supplemental authorities in this Court generally follow suit and have infomied 
Reinforcing this common sense interpretation is Black's Law Dictionary definition of the word 
"authorities": 
Plaintiffs' Notice Is Not "Supplemental Authority" 
Citation of Supplemental Authorities. If pertinent and 
significant authorities come to a party's attention after the 
party's brief has been filed--or after oral argument but before 
decision--a party may promptly advise the circuit clerk by 
letter, with a copy to all other parties, setting forth the 
citations. The letter must state the reasons for the supplemental 
citations, referring either to the page of the brief or to a point 
argued orally. The body of the letter must not exceed 350 words. 
Any response must be made promptly and must be similarly 
limited. 
Citations to statutes, precedents, judicial decisions, and text-books of 
the law, made on the argument of questions of law or the trial of causes 
before a court, in support of the legal positions contended for, or 
(continued ...) 
- 5 - the Court of a judicial ruling and its relevance to pending proceedings. See, e.g, Lvnom v. Widall, 222 
F. Supp. 2d 1,3-4 (D.D.C. 2002) (citation to recently issued Supreme Court decision on issue 
regarding application for fees); American Min. Conmess v. U.S. Army Corns of Engineers, 120 F. 
Supp. 2d 23,28 n.7 (D.D.C. 2000) (citation to Fourth Circuit decision in support of argument to deny 
motion to compel compliance with injunction); American Chiropractic Ass‘n v. Shalala, 108 F. Supp. 
2d 1, 10 11.7 (D.D.C. 2000) (citation to recently issued Supreme Court decision to support motion to 
dismiss); Independent Petrochemical COT. v. Aetna Cas. and Sur. Co., 842 F. Supp. 575, 582 
(D.D.C. 1994) (citation to Eighth Circuit opinion on pending joint motion for summary judgment); 
Beverly Hosp. v. Bowen, No. 86-3079, 1987 WL 19217 (D.D.C. Oct. 20, 1987) (citation to an 
opinion issued in the district court of the Western District of Wisconsin and its effect on agency’s 
interpretation of a regulation which was challenged in motion for summary judgment); Stormont-Vail 
Reg’l Medical Ctr. v. Bowen, 645 F. Supp. 1182, 1190 (D.D.C. 1986) (citation to recently issued 
D.C. Circuit opinion in opposition to motion for summary judgment). But see Cobell v. Norton, 213 
F.R.D. 33, 36 (D.D.C. 2003) (notice of supplemental authority cited Department of the Interior press 
statement). 
include the misuse of the “notice” filing to provide a The term “authorities,” however, does 
court additional incomplete and incompetent evidence on a matter under consideration following trial. 
4(. . .continued) 
adduced to fortify the opinion of a court or of a text writer upon any 
question. Authorities may be either primary (‘a, statutes, court 
decisions, regulations), or secondary (s, Restatements, treatises). 
Black‘s Law Dictionary, 121 (Sh Ed. 1979). 
- 6 - that each side’s proposed findings of fact and conclusions of law would not be subjected to 
responsive pleadings. Thus, Plaintiffs have absolutely no basis for this new “supplemental” 
pleading. 
Dated: September 23, 2003 
n 
CONCLUSION 
Plaintiffs’ Notice of Supplemental Authority should be stricken as an improper attempt to 
supplement the Phase 1.5 trial record because the trial is complete and because the Special 
Master’s Site Visit Report is not “authority.” 
Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 5 14-7 194 
- 7 - ELOUISE PEPION COBELL, al., 
Plaintiffs, 
V. 
GALE NORTON, Secretary of the Interi 
Defendants. 
SO ORDERED 
This matter comes before the Court on the Interior Defendants ’ Motion to Strike Notice of 
Supplemental Authority in Support of PIainl8s’ Proposed Findings of Fact and Conclusions of Law 
Dated August 4, 2003 and in Support of Plaintigs ’ Plan for Determining Accurate Balances in the 
Individual Indian Trust, Dated Januar)? 6, 2003. Upon consideration of the Opposition, any Reply 
thereto, and the entire record of this case, it is hereby 
ORDERED that the Motion is, GRANTED and; 
It is FURTHER ORDERED that The Clerk of the Court is directed to remove said notice (Dkt. 
2271) from the docket and return it to Plaintiffs. 
ORDER 
Hon. Royce C. Lamberth 
UNITED STATES DISTRICT JUDGE 
United States District Court for the 
District of Columbia 
) 
1 
) 
Date: 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
) 
) 
) 
) 
Case No. 1:96CVO1285 
(Judge Lamberth) 
- et I-, cc : 
Sandra P. Spooner 
John T. Stemplewicz 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Fax (202) 5 14-9 I63 
Dennis M Gingold, Esq. 
Mark Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, D.C. 20005 
Fax (202) 318-2372 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, NW 
Washington, D.C. 20036-2976 
Fax (202) 822-0068 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Alan L. Balaran, Esq. 
Special Master 
1 7 1 7 Pennsylvania Avenue, N. W., 1 3th Floor 
Washington, D.C. 20006 
(202) 986-8477 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530 CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on September 23,2003 I served the foregoing 
Interior Defendants ’ Motion to Strike Notice of Supplemental Authority in Support of Plaintfls ’ 
Proposed Findings of Fact and Conclusions of Law Dated August 4, 2003 and in Support of 
Plaint@s ’ Plan for Determining Accurate Balarzces in the Individual Indian Trust, Dated 
January 6, 2003 by facsimile in accordance with their written request of October 3 1, 2001 upon: 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
(202) 822-0068 
By Facsimile and U.S. Mail upon: 
Alan L. Balaran, Esq. 
Special Master 
171 7 Pennsylvania Avenue, N. W., 13th Floor 
Washington, D.C. 20006 
(202) 986-8477 
Per the Court’s Order of April 17,2003, 
by Facsimile and by U.S. Mail upon: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 5941 7 
(406) 338-7530 
By U.S. Mail upon: 
Elliott Levitas, Esq 
1 100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, D.C. 20005 
(202) 3 18-2372