U.S. Department of Justice 
Civil Division, Appellate Staff 
950 Pennsylvania Ave., N.W. Room 7531 
Washington, D.C. 20530 
Tel: (202) 514-5089 
Fax: (202) 514-8151 
October 5, 2004 
Mr. Mark J. Langer 
Clerk, United States Court of Appeals 
for the District of Columbia Circuit 
United States Courthouse 
Room 5423 
Third & Constitution Avenue, N.W. 
Washington, D.C. 20001 
Re: Cobell v. Norton, No. 03-5314 
Dear Mr. Langer: 
By letter dated September 28, 2004, plaintiffs advised the 
Court of a September 9 district court ruling declaring that 
“Interior has once again proven that it can not be trusted and is 
in need of judicial oversight.” Mem. 11. Plaintiffs argue that 
the ruling demonstrates the propriety of a structural injunction. 
To the extent that the ruling is relevant, it underscores 
the extent to which the court has departed from principles of 
judicial review reaffirmed in Norton v. Southern Utah Wilderness 
Alliance, 124 S. Ct. 2373 (2004). A court may direct an agency 
to take “a discrete agency action that it is required to take.” 
Id. at 2379. It does not acquire jurisdiction to oversee all 
matters with any possible connection to the duty at issue. 
The court’s ruling (which did not involve a hearing) 
involved exposure of some boxes of trust documents to water or 
mold. Interior has assembled an extraordinary number of trust 
records, estimated in the Accounting Plan at 195,000 boxes. 
Reply Br. 12, JA 841. In the “water” incident cited by the 
court, 62 of those boxes were exposed to a water leak in a 
commercial storage facility; four of the 62 showed signs of 
minimal water exposure. 9/21/04 Report at 6. In the “mold” 
incident, 155 boxes (about half of which contained trust records) 
came in from the Navajo Region with mold. Id. at 8. The boxes 
were segregated and Interior is securing a contractor to take 
remedial measures. Ibid.
Although the court declared that “vital” trust records were 
“placed in jeopardy and/or destroyed,” Mem. 3, it identified no 
loss of relevant information and no way in which the agency’s 
accounting activities were impaired. Interior confronts myriad 
problems in gathering and maintaining trust documents created 
over many decades. It is clear that Interior was vigorously 
addressing the particular problems at issue without judicial 
intervention, and, in any event, APA § 706(1) “empowers a court 
only to compel an agency to perform a ministerial or nondiscretionary 
act,” Southern Utah, 124 S. Ct. at 2379, not to 
direct the conduct of daily operations. 
cc: Hon. Royce C. Lamberth 
Keith M. Harper 
G. William Austin 
Elliott H. Levitas 
Dennis Marc Gingold 
Earl Old Person 
Respectfully submitted, 
PETER D. KEISLER 
Assistant Attorney General 
GREGORY G. KATSAS 
Deputy Assistant Attorney 
General 
ROBERT E. KOPP 
MARK B. STERN 
THOMAS M. BONDY 
CHARLES W. SCARBOROUGH 
ALISA B. KLEIN 
LEWIS S. YELIN 
TARA L. GROVE 
Attorneys, Appellate Staff 
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