ELOUISE PEPION COBELL, et al., 
I 
GALE A. NORTON, 
Secretary of the Interior, et al., ) 
1.1 -.m-r..--_T.r. A n "n-nnmr n-r .rrrnmrr.r n-h-.r-"m -. -. -. -_-...I 
DEFENDANTS-APPELLANTS' RESPONSE TO PLAINTIFFS--APPELLEES' 
MOTION TO STRIKE JOINT APPENDIX MATERIALS INCLUDED AT THE 
) 
) 
I T _ - 
respectfully respond to plaintiffs-appellees' motion to strike the 
Joint Appendix materials included at the request of Secretary 
Appendix, the government has attempted to accommodate requests from 
both plaintiffs' counsel and private counsel for Secretary Norton. 
that were cited even in part in plaintiffs' brief, and also 
included the entire trial transcript. See Exh.A (letter of March 
Plaintiffs moved to strike those briefs, but the Court has not 
resolved those motions. Accordinqly, the qovernment a l s o souqht to accommodate the request f rain Secretary Nortcn' s ;?rivate counsel 
that materials cited in her briefs be included in the Joint 
Appendix. 
2. Although the resulting appendix is t h u s significantly 
larger than the government would have preferred, the government has 
borne the entire burden and expense of preparing and filing the 
appendix. Plaintiffs do not suggest that any of the materials 
included in the appendix are not part of the record. There is thus 
no basis for concluding that the government violated this Court's 
rules by including in the Joint Appendix materials c i t e d in various 
-----A -""A3 briefs, o r for r n n r l i i d i n m that plaintiffs h a ~ ~ r e suffered any 
prejudice as a result .' 
.clrge t h a t any --t,-.' r i a i i i L IL ~a 3 . i L t a L - 1 la1 cited solely by 
' - - pi. Mot. ac 4. 
- .- 
nl '-t < F F , 
Secretary Norton's private counsel should have been I'submitted to 
the Cierk separately in a 'Lodged Joint Appendix. j i 
Plaintiffs are wrong, and their suggestion misconceives the 
nature of the Joint Appendix. The Court is free to review any part 
of the record, whether or not it is specifically cited in the 
briefs. See D.C. Cir. Rule 30(b). The Court i.s also free to 
dispense with those parts of the record that; it considers 
Nor is there any basis for plaintiffs' contention that the 
government iiconcealedli its inclusion of materials c i t e d by 
Secretary Norton's private counsel. See P1. Mot. at 2. Indeed, 
counsel for the government specifically noted in the cover sheet of 
a fax to plaintiffs' couzsel that its working list of Joint 
Appendix items includes "materials that the Secretary's private 
counsel is citing in their reply brief.'' Pl. Mot. (Exh. A) purpose would thus be served by the segregation plai-ntif f s propose. 
L 
Although plaint Lffs ha-Je s,JffPred no p r e j u d i c e f r o m the 
expense and burden of reconstructing the ten volume Joint Appendix 
in order to segregate the materials in the way proposed by 
-2 
5. But, of course, there has been no intransigence. To the 
ram~ncltcl r n n t r a n r 
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a c n n t a d 
. . 
t n a r r n m m n d a t a nl a i n t i f f c I 
. - 
P1. Mot. at 5, deserves little weight. 
+ha 
v i e w W L p i d i i i i i i ~ s ~ i i b i b ~ e i i ~ e LIML dii i i e r r i s cir;ea in Lneir D r i e L s 
be included in their entirety, including the entire trial 
effect of cluttering up and confusing the record in this appeal," 
removed from the Joint Appendix, P1. Mot. at 6, because they claim 
they cannot identify what material was cited 'solely by Secretary 
can be determined by comparing plaintiffs' brief and t h e government's briefs with those submitted by Secretary Norton's 
private counsel. In preparing the Joint Appendix, the government 
simply added materials cited ir, the briefs submitted by Secretary 
Norton's private counsel; it did not create an independent list of 
those materials. 
ROSCOE C. HOWARD, JR. 
United States Attorney 
MARK E. NAGLE 
R. CRAIG LAWRENCE 
Assistant U.S. Attorneys 
U.S. Attorney's Office 
Washinqton, D.C. 20001 
For the foregoing reasons, the Court should deny plaintiffs- 
appellees' motion to strike the joint appendix materials included 
at t h e rec;uest =f Secretary Norton in her indi~~rid~ial capacity. 
CONCLUSION 
ROBERT D . McCALLUM, JR . 
Assistant Attorney General 
GREGORY G. KATSAS 
Deputy Assistant Attorney General 
ROBERT E. KOPP 
MARK THOMAS B. M. STERN 
CHARLES W. SCARBOROUGH 
SAMBHAV N. SMEAR 
(202) 514-5089 
__I 
APRIL 2 0 0 3 
BONDY CLi JbLJ( ,' - 
A t t n r n e y - -- __- , L&gp~llat- S t a f f 
r.1- ? n c ~ n - 1, ' 
Civil Division, Room 9108 
Demrtment of! Justice 
601 D Street, N.W. 
vvasiiinqton, E . C . L L J ~ J U 
- 4 - CERTIFICATE OF SERVICE 
(4 day of A p r i l , 2003, I a m I hereby c e r t i f y that on this 
causing co~ies of the fcregD1ng c p p o s i t i o n to be served on the 
following in t h e manner specified: 
BY facsimile: 
Elliott H. Levitas 
G. William Austin 
Kilpatrick Stockton, LLP 
1100 Peachtree Street 
Suite 2800 
Atlanta, Georgia 30309-4530 
( 2 0 2 ) 508-5858 (fax) 
Herbert L. Fenster 
Daniel G. Jarcho 
McKenna Long & Aldridge 
1900 K Street, N.W. 
Suite 100 
Washington, D.C. 20530 
( 2 0 2 ) 496-7756 (fax) 
By reqular mail: 
The Honorable Royce C. Lamberth 
United States District Court 
United States Courthouse 
Third and Constitution Ave., N.W. 
Washington, D.C. 20001 
Dennis M. Gingold 
1275 Pennsylvania Avenuet N.W 
9th Floor 
Washington, D.C. 20004 
Keith H a r - r r--- 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
CHARLES W. SCARBOROUGH 
Attorney, Department of Justice March 6, 2003 
Mr. William G. Austin, Esq. 
Kilpatrick Stockton. LLP 
607 14th Street, X.W. 
Washington, D.C. 20005-201 8 
Re: Cobell v. Norton, No. 02-5374 (D.C. Cir.) 
Dear Bill: 
lliat iife 
As you know from our phone coiiversations today, including our conference call with D.C. 
Circuit Deputy Clerk Jolm Haley, it is the government's position that only the relevant portions of 
inaterials cited in the parties' appellate briefs should properly be included in the joint appendix. That 
position derives fY0mD.C. Cir. Rule 30(b), whch specifies that "[tlhe appendix must contain a copy 
ofrelevant poflions ofayL plea(=jings, iranscnpts, 
that counsel must not "burden the appendix with material of excessive length or items that do not 
bear directly on the issues raised on appeal." 
in the 'unefs,'' arid -waxls 
Pursuant to that rule, the government intends to include copies of the: relevant portions of & 
materials cited in plaintiffs' appellate brief, filed on Februaq 24;2003. Moreover, at your request, 
the government has also agreed to include full copies of litenor's quarter1,y reports and the Court 
Monitor's reports cited in the brief (with attac'mentsj, even ifoniy a few pa.ges have been cited. in 
order to verify that we are not missing any items, we also provided you today with a working list of 
documents to be included in the joint appendix and asked you to identify any omissions of material 
cited in your brief. You have agreed to provide us with a list no later than toinorrow morning of any 
niateiials cited in your brief that we may have inadvertently omitted. 
Finally, 13m writing to confirm our agreement with regard to inclusion ofthe entire contempt 
trial transcript in the appendix. As you know, the ,oovemment believes that only tile trial testimony 
specifically cited in the parties' briefs, on appeal should be included in the appendix -with sufficient 
surrounding pages to give contest to the cited portion ofthe transcript. In order to avoid burdening Cordially, 
-~ - - _-- 
United States Department of Justice 
Civil Division, Appellate Staff