<< COB0000001 >>
TN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUPvIBIA
	ELOUISE PEPION COBELL, et al.,	)
		)
	Plaintiffs,	)
		)
	V.	)	Case No. l:96CV01285
)	(Judge Lamherth)
GALE A. NORTON, Secretary of the Interior et al.,)
		)
	Defendants.	)
DEFENDANTS' (1) REPLY IN SUPPORT OF MOTION TO
WITHDRAW THREE MOTIONS FOR PARTIAL
SUMMARY JUDGMENT; AND (2) OPPOSITION TO
PLAINTIFFS? CROSS-MOTIONS FOR SUMMARY JUDGMENT
Defendants state the following as their reply to Plaintiffs' Opposition to Defendants'
Motion to Withdraw Three Motions for Partial Summary Judgment, and as their opposition to
Plaintiffs' Cross-Motions for Summary Judgment as to (A) There Being No Temporal Limit to
Defendants' Obligation to Account, and (B) the Non-Settlement of Accounts, which were filed by
Plaintiffs on February 15, 2002.'
REPLY IN SUPPORT OF
MOTION TO WITHDRAW THREE
MOTIONS FOR PARTIAL SUMMARY JUDGMENT
Introduction
	Defendants' memorandum in support of their Motion to Withdraw Three Motions for
Partial Summary Judgment ("Motion to Withdraw") stated good reasons for allowing the
	Defendants are filing a separate opposition to the Plaintiffs' Motion for Sanctions and a
Contempt Finding Pursuant to F.R.C.P. 56(g), which also was contained in Plaintiffs' filing of
February 15, 2002.
<< COB0000002 >>
withdrawal of Defendants' three pending motions for partial summaryjudgment. In essence,
events subsequent to the filing of those motions in 2000 — particularly the D.C. Circuit's decision
in this case on February 23, 2001 (Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001) and the
establishment of the Office of Historical Tnist Accounting in the Department of the Interior
("Interior")) — render the issues raised by the motions either moot, premature for decision by the
Court, or otherwise inappropriate for a decision at this time. Plaintiffs' Opposition ("P1. Opp.")
to the Motion to Withdraw fails to overcome that showing. Rather than responding on the
merits, Plaintiffs iiiake irresponsible and baseless allegations of improper motive in filing the
motions originally.2
	Plaintiffs have not shown a valid legal basis for denying the Motion to Withdraw. First,
while they argue that withdrawal should not be allowed when a cross-motion has been filed,
Plaintiffs only filed cross-motions with regard to two of the three motions for partial summary
judgment. Thus, even under Plaintiffs' theory, Defendants should be allowed to withdraw the
remaining motion for partial summary judgment.
	Second, ample ease law supports allowing the withdrawal of all three partial summary
judgment motions. Even the more restrictive decisions cited by Plaintiffs would, at most,
suggest deferring a ruling on whether to allow withdrawal of the first and third motions until the
Court rules on Plaintiffs' corresponding cross-motions for summaryjudgment, in order to see
whether the issues raised in Defendants' motions are decided and thus rendered moot.
	2 Defendants' separate filing described in note I addresses Plaintiffs' baseless allegations
of bad faith.
-2-
<< COB0000003 >>
Areument
I.	Because Plaintiffs Filed No Cross-Motion Regarding the Matters in
Defendants' Second Motion for Partial Summary Judgment, Plaintiffs
Offer No Basis For Refusin2 To Allow Withdrawal of That Motion
	Plaintiffs argue (P1. Opp. at 17) that courts "often" deny motions to withdraw motions for
summary judgment when a cross-motion for summary judgment has been filed. Even if that is
so, Plaintiffs have only filed two cross-motions for summary judgment, which purport to be
directed at Defendants' first and third motions for summaryjudgment. But Plaintiffs filed no
cross-motion directed at Defendants' second motion for summary judgment.3 Therefore, even
under Plaintiffs theory, Defendants should be granted leave to withdraxv their second motion for
summary judgment.
II.	Withdrawal of Summary Jud2ment Motions Is Appropriate
	Courts often allow withdrawal of motions ibr summary judgment See ~g, Redmond v.
Birkel, 933 F. Supp. 1, 2 (D.D.C. 1996) (granted a plaintiffs request to withdraw motion for
partial summaryjudgment); Delta Marine. Inc. v. Whaley, 813 F. Supp. 414, 416 (E.D.N.C.
1993); Simons v. United States, 25 Cl. Ct. 685, 687 n.4 (1992), affd, 17 F.3d 1444 (Fed. Cir.
1994); Chambers v. Valley Nati Bank of Ariz., 721 F. Supp. 1128, 1130 (D. Ariz. 1988); Banks
v. St. Mary's Hosp. and Med. Ctr., 558 F. Supp. 1334, 1336 (D. Cob. 1983); Stewart v.
Wap~in~ers Central School Dist., 437 F. Supp. 250, 251 (S.D.N.Y. 1977).
	Indeed, in Simons, 25 Cl. Ct. at 687 n.4, and Stewart, 437 F. Supp. at 25 1-52, the courts
allowed withdrawal of the summary judgment motions even though the opposing party filed a
	~	Defendants' second motion for partial sunimaryjudgrnent asserted that neither the 1994
Reform Act nor other authority required Defendants to account for funds never received by the
United States (such as lease payments made directly to the allotment owners).
-3-
<< COB0000004 >>
cross-motion for summary judgment (Simons, id.) or a motion to dismiss (Stewart, Id.). Thus,
ample authority supports allowing Defendants to withdraw their motions for summary judgment,
notwithstanding Plaintiffs' cross-motions for partial summary judgment.
	Even the case upon which Plaintiffs chiefly rely. In re White Farm Equipment Co., 23
B.R. 85,93 (Bankr. N.D. Ohio 1982), rev'd on other grounds, 42 B.R. 1005 (ND. Ohio 1984),
rev'd. 788 F.2d 1186 (6th Cir. 1986), is inapposite because it involved the court's criticism of a
party's attempt to withdraw a motion for summary judgment without first seeking or obtaining
leave of court. That situation is not present here, and even the White Farm court acknowledged
that a motion maybe withdrawn by "consent of all parties or leave of court." 23 B.R. at 93
(emphasis added).
	Moreover, most of Plaintiffst cited cases (P1. Opp. at 17) denied leave to withdraw a
summary judgment motion because the court simultaneously granted an opposing party's cross-
motion for summaryjudgment, thus resolving the issues in dispute and rendering the first motion
moot. See Plaintiffs' cited cases of Bozzuto v. Sarra, 2001 WL 266028 (W.D.N.Y. March 12,
2001) at *3 (because defendants' motion for summa.ry judgment was granted, plaintiffs motion to
withdraw his motion for summary judgment was "render[ed] moot"); Condit v. United Air Lines.
ink, 631 F.2d 1136, 1138 (4th Cir. 1980); Smith v. Travelers Indem. Co., 763 F. Supp. 554, 562
(M.D. Fla. 1989) (motion to withdraw motion for summary judgment "is denied as moot"); In re
White Farm, 23 B.R. at 104. Thus, the mere pendency of cross-motions does not warrant a
denial of leave to withdraw motions for summary judgment.
	Rather, at most, Plaintiffs' cited authorities merely suggest deferring a decision on
whether to allow withdrawal of the Defendants' first and third motions for partial summary
-4-
<< COB0000005 >>
judgment until the Court rules on Plaintiffs' cross-motions. Even then, Defendants should be
allowed leave to withdraw their summary judgment motions unless the Court grants Plaintiffs
cross- motions and enters a partial judgment that fully disposes of the matters covered by
Defendants' first and third motions, and thus renders the Motion to Withdraw moot.
Conclusion
	For the foregoing reasons, Defendants should be granted leave to withdraw their three
pending motions for partial summary judgment. At a minimum, the second motion for partial
summary judgment should be withdrawn, as no cross-motion directed at it is pending.
Alternatively, if the Court does not allow withdrawal of the Defendants' motions, Defendants
should be given an opportunity to file supplemental briefs to address the effect of subsequent
events (as outlined in Defendants' Motion to Withdraw) on the arguments made in the motions.
OPPOSITION TO PLAINTIFFS' CROSS-MOTIONS
FOR SUMMARY JUDGMENT AS TO
(A) THERE BEING NO TEMPORAL LIMT
TO DEFENDANTS' OBLIGATION TO ACCOUNT,
AND (B) THE NON-SETTLEMENT OF ACCOUNTS4
Introduction
	Plaintiffs seek partial summary judgment on two points: "(1) That the scope of the
accounting owed is without temporal limitation, j~, it extends both pre- and post-1994; and (2)
That there has been no 'settlement' of the accounts of plaintiffs or their predecessors-in-interest
by reason of the supposed settlement of accounts process referenced in the GAO letter."
Plaintiffs' Cross-Motions for Summary Judgment ("P1. Mo.") at 19.
	"Defendants also have filed a Statement of Genuine Issues of Material Fact, pursuant to
LCvR 7.1(h) and 56.1.
-5-
<< COB0000006 >>
	Plaintiffs' cross-motions should be denied.5 First, the motions involve issues that are not
ripe and are otherwise inappropriate for summary judgment at this juncture of the case. Second,
if and to the extent that Plaintiffs' first cross-motion for summary judgment goes beyond merely
seeking a generalized determination that the accounting owed "extends both pre- and post-1994,"
it could improperly and prematurely affect Defendants' ability to assert defenses such as the
statute of limitations or other defenses that could affect the time period for particular class
members' accountings. Third, if and to the extent that Plaintiffs' second cross-motion for
summary judgment goes beyond merely seeking a determination that the General Accounting
Office ("GAO") settlement process did not, by itself, fulfill Defendants' accounting obligations in
light of the Court of Appeals decision in this case, the motion should be denied because Plaintiffs
fail to establish that the GAO process was not performed, and that "settlements" did not result.
Further, Plaintiffs offer no basis to preclude using the results as part of the accounting that will
be performed.
Argument
I.	The Issues Raised in Plaintiffs' Cross-Motions for Summary Judgment
Are Not Ripe or Otherwise Are Not Anpropriate for Summary Judgment
A.	The Generalized Issues Framed by
Plaintiffs' Cross-Motions Are Not In Dispute
1.	Overview
	If Plaintiffs' first cross-motion for summary judgment merely seeks a determination that,
	~ Plaintiffs' cross-motions do not include a statement of material facts as to which
Plaintiffs contend there is no genuine issue, as required by LCvR 7.1(h) and 56.1. The motions
should be denied on that basis alone.
-6-
<< COB0000007 >>
as a general proposition, the required accounting must extend to the pre- and post-1994 time
period, Defendants do not dispute that. If Plaintiffs' second cross-motion for summary judgment
merely seeks a determination that the GAO's settlement process did not, by itselg meet Interior's
accounting obligations, Defendants no longer contend otherwise. Those particular points are not
in dispute, so summary judgment on those matters is not appropriate.
	However, because of the vague nature of Plaintiffs' cross-motions for summary judgment,
it is not clear what Plaintiffs ask this Court to hold. Those motions appear merely to seek
judgments that simply restate principles set forth by the Court of Appeals in its February, 2001
decision, Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001). Those points are not in dispute and
thus are not appropriate for summaryjudgment. See Dexler v. Carlin, No. H-83-333, 1986 WL
6476, at *2 (D. Conn. March 20, 1986) (summary judgment denied "[un the absence of any facts
establishing that these issues [regarding movant's legal duties under Rehabilitation Act and
collective bargaining agreements] are in dispute and in the face of Enon-movant's] assertion that
the relevance of the issues is disputed").
2.	Defendants' First and Third
Motions for Partial Summary Judgment
	Plaintiffs assert that their cross-motions seek the "converse" of Defendants' first and third
motions for partial summary judgment, apparently hoping to show that Plaintiffs' motions present
real issues that should be decided one way or the other. But a review of what Defendants' first
and third motions really asserted — and how those arguments were affected by the February, 2001
Court of Appeals decision, Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001)— demonstrates that
Plaintiffs' motions (at least on their face) actually seek a '~judgment" on generalized propositions
-7-
<< COB0000008 >>
that are not really in dispute.
	Defendants' first motion for partial summaly judgment — filed in March, 2000 asserted
that, consistent with this Court's opinion, because Defendants' trust obligations were governed by
applicable statutes (particularly the American Indian Trust Fund Management Reform Act of
1994 (the "1994 Act")), and because no such statutes required the sort of common-law-style
historical accounting that reconciles all pre-1994 transactions, Plaintiffs had no right to such an
historical accounting or reconciliation. Rather, Defendants argued, the 1994 Act imposed
generally prospective obligations, and "required at most that historical analysis or reconstruction
that Interior determined was appropriate and feasible to support the prospective obligations" of
the 1994 Act. See Defendants' memorandum in support of first motion for partial summary
judgment at 30-31. The Court of Appeals stated that the 1994 Act did not create Defendants'
fiduciary duties, but "reaffirmed and clarified preexisting duties." Cobell, 240 F.3d at 1100. The
court also stated that the Department of the Interior must provide an accounting for "all funds,
irrespective of when they were deposited (or at least so long as they were deposited after the Act
of June 24, 1938)." Id. at 1102. The court further held, however, that the decisions about "how
the accounting would be conducted" would be "left in the hands" of the agency. Id. at 1104.
Thus, even if Defendants' first motion for partial summary judgment were read to argue that no
pre-1994 accounting was required (which misstates Defendants' actual argument), Defendants do
not assert that now, and have asked for leave to withdraw their first motion for partial summary
judgment.
	Defendants' third motion for partial summary judgment — filed in September, 2000—
-8-
<< COB0000009 >>
asserted that, because applicable statutes defined whatever obligation to account existed between
1817 and 1951, and established specific procedures for "settlement" of the accounts, these
statutes defined Defendants' obligation to account for transactions occurring through that period
of time. Thus, Defendants argued, if they satisfied the statutory procedures, Plaintiffs would
have no entitlement to a second or different accounting or reconciliation of transactions through
1951. However, as described above, the Court of Appeals later ruled that Defendants' obligations
are not defined solely by statute. Thus, Defendants no longer assert that performance of the pre-
1951 statutory procedures (whether called "GAO settlement" procedures or otherwise), by itself,
is sufficient to meet Interior's accounting obligations, and Defendants have moved for leave to
withdraw their third motion for partial summary judgment.
B.	Broader Determinations Would Be Premature
	To the extent Plaintiffs seek broader determinations that would interfere xvith Interior's
administrative decisions about how to conduct the accounting, Plaintiffs' motions are premature.
The Court of Appeals expressly held that decisions regarding "how the accounting would be
conducted" are to be left to the agency to decide in the first instance. CobeIl, 240 F.3d at 1104.6
	Thus, for example, Interior has the authority to decide what role, if any, the results of the
pre-1951 GAO or Treasury settlement procedures should have in Interior's performance of an
accounting. Asking for a decision from the Court at this juncture on that issue would contravene
the Court of Appeals' direction that such decisions are to be left initially to the agency.
	6 ~ Department of the Interior's Response to the Fifth Report of the Court Monitor, filed
on this date, for a further discussion of the Administrative Procedure Act, 5 U.S.C. § 701 et seq.,
in this context.
-9-
<< COB0000010 >>
Therefore, a summary judgment specifying the effect or use (or precluding use) of the GAO or
other settlement procedures would be improper. See Shivwits Bank of Pajute Indians v. Utah,
No. 2:95CV1025C, 2002 WL 191916, at *6 (D. Utah Fcb. 6,2002) (denying summary judgment
regarding impact of land use restrictions, because that would depend upon how the agency
classified the land; thus, court had to await final agency determination on that question); see also
Wvomin~ Outdoor Council v. Dombeck, 148 F. Supp.2d 1, 8 (D.D.C. 2001) (claim involving
administrative agency action is ripe only when the agency action is final).
II.	Accountings Pertaining to Particular IIM Account Holders or
Groups of Account Holders May Be limited in Time
By the Statute of Limitations or Other Le2al Doctrines
	Plaintiffs characterize their first cross-motion for summary judgment as pertaining to "the
unlimited temporal scope of Defendants' duty to account." P1. Mo. at 19. But the text of
Plaintiffs' motion specifically limits the scope of the partial judgment they seek, stating that they
seek a determination that "the scope of the accounting owed is without temporal limitation, i e it
extends both pre- and post-1994." Id. (emphasis added). Plaintiffs' first cross-motion should be
deemed limited by that argument. Thus, if Plaintiffs seek only a generalized determination that
the accounting "extends both pre- and post-1994," Defendants have no objection to the substance
of that position, although, as set forth above, a summary judgment on such an undisputed legal
proposition is inappropriate.
	However, if and to the extent that Plaintiffs' motion is deemed to seek a broader
determination— i.e., that the accounting has no time limits as to any Plaintiff or group of Plaintiffs
under any circumstances— Defendants strongly oppose that position on the merits. Various legal
-10-
<< COB0000011 >>
principles could impose time limitations upon any given class member's right to an accounting.
For example, this Court previously reserved ruling on whether the statute of limitations might bar
Plaintiffs' claims.7 See Cobell v. Babbitt, 30 F. Supp.2d 24, 44 (DDe. 1998); see also Cobell v.
Babbitt, 91 F. Supp.2d 1, 32 (D.D.C. 1999). The Court held that Defendants "remain frec to
raise their statute of limitations defense at the summary judgment stage, once the parties have
completed their discovery of facts that go to the plaintiffs' knowledge and have had the
opportunity to adequately brief the issues presented." 30 F. Supp.2d at 45.
	In an October 1, 2001, Opinion and Order (at 12), the Special Master also recognized that
discovery pertaining to statutes of limitations is one of the permissible areas of Phase 11
discovery. Thus, the record adequately establishes that further discovery is needed before such
issues can be decided.8 Until discovery is completed, and remaining legal issues pertaining to
such matters are fully briefed, no summaryjudgment should be entered which might preclude all
	~ Other matters that could affect the time period of any required accounting for particular
Plaintiffs could include, for example, other litigation or legal proceedings which might have
established a particular beneficiary's trust account balance as of a given date, and the effect of
probate proceedings for the estate of a predecessor-in-interest.
	Although Fed. R. Civ. P. 56(f) provides a mechanism of submitting an affidavit to
establish what further discovery is needed, the Court of Appeals has recognized that an affidavit
is not always required, if other filings in the record "sufficed to alert the district court of the need
for further discovery and thus served as the functional equivalent of an affidavit." First Chicago
Int'l v. United Exchange Co.. Ltd., 836 F.2d 1375, 1380 (D.C. Cir. 1988). In this case, the
Court's prior recognition of the need for discovery on statute of limitations issues (30 F. Supp.2d
at 45), the Special Master's October 1, 2001 Opinion and Order (at 12), and this Opposition to
Plaintiffs' cross motions collectively serve that function.
	Understandably, the magnitude of the proceedings surrounding Phase I of this case, the
recent contempt proceedings, and attention to information technology security issues, have
preoccupied the parties. Defendants anticipate that they soon will proceed with discovery
regarding possible affirmative defenses.
—11—
<< COB0000012 >>
limits on time periods for which accountings must be performed. See Celotex CorD. V. Catrett,
477 U.S. 317, 322 (1986) (summary judgment should not be entered until "after adequate time
for discovery").
Moreover, Plaintiffs fail to meet their burden as the movants to show that no genuine
issue of material fact exists regarding the effect of statutes of limitations or other legal doctrines
that might, with regard to a particular Plaintiff or group of Plaintiffs, effectively limit the time
period for which an accounting must be performed. Plaintiffs' cross-motions contain no
discussion of such issues. Indeed, Plaintiffs' cross-motions do not even argue for a ruling on the
effect of the statute of limitations or other legal doctrines that might impact the time period of
accountings for particular class members, so a summary judgment that might, in effect, decide
such issues would not be proper.
III.	Plaintiffs Show No Basis To Preclude Use
of GAO and Other "Settlement" Procedures
	Plaintiffs' second cross-motion also is vague. Plaintiffs argue (P1. Mo. at 19) "that there
has been no 'settlement' of the accounts of plaintiffs or their predecessors-in-interest by reason of
the supposed settling of accounts process referenced in the GAO letter." Plaintiffs further argue
that "the GAO practices and procedures, to the extent conducted, cannot serve as a substitute for
the fiduciary accounting that is owed to IIM beneficiaries. . . ." Id. at 20. Plaintiffs elsewhere
ask the Court to enter a much broader summary judgment that "there has been no 'settlement' of
the accounts of plaintiffs or their predecessors-in-interest." P1. Mo. at 21.
	If Plaintiffs' second cross-motion for summary judgment merely seeks a determination
that the procedures followed by GAO or the Department of the Treasury until 1951 do not, by
- 12-
<< COB0000013 >>
themselves, constitute a full and complete accounting with regard to each individual Indian trust
account, Defendants do not substantively disagree with that point (nor is it the converse of the
argument made in the Defendants third motion for partial summary judgment). For the reasons
stated above, however, that proposition is not appropriate for summary judgment.
	But if Plaintiffs seek a broader deterudnation, such as a ruling as to whether the 'GAO
practices and procedures" were followed, whether 'settlements" occurred,9 or what use they
might have in accountings to be conducted by Interior, Defendants strongly oppose such a
request on the merits. First, the record contains sufficient evidence at least to establish a genuine
issue of material fact that the statutory settlement procedures were followed. See the Declaration
of Frank Sapienza, submitted with Defendants' third motion for partial summary judgment.
	Plaintiffs fail to show othenvise. Plaintiffs point to the so-called "Useless Papers
Report," but that document does not disprove that the statutory procedures were followed and
does not show that the documents needed for GAO review at any given time were unavailable
then.'0 For example, Plaintiffs (P1. Mo. at 13) make much of the statement in the Useless Papers
Report that "document-specific accountings were rare." Plaintiffs suggest that this means that
agencies did not perform accountings of specific documents when they performed their reviews
	~	"Settlement" is a term of art. As described in the Declaration of Frank Sapienza
(attached to Defendants' third motion for partial summary judgment), the end result of the review
process by GAO or Treasury was the "settlement" of the disbursing agents' accounts.
	10 Nor do Plaintiffs prove their point by citing other materials, such as the GAO letter
dated August 27, 1999, or the testimony of Thomas Thompson (P1. Mo. at 2). As shown more
fully in Defendants' separate brief responding to Plaintiffs' motion for sanctions and a finding of
contempt, the GAO letter and other items cited by Plaintiffs do not disprove compliance with
pre-1951 GAO settlement procedures.
- 13 -
<< COB0000014 >>
under the GAO or Treasury account settlement procedures. Plaintiffs' reading distorts the clear
meaning of the statement. As shown in the declaration of the report's author, William Morgan
(attached to Defendants' contemporaneously filed Opposition to Plaintiffs' motion for sanctions
and a finding of contempt), that statement meant that agency records did not clearly indicate the
specific documents that had been destroyed; it did not pertain to the quality, methodology or
conduct of agencies' reviews of disbursing agents' records. Even without Morgan's declaration,
the text of the report itself—read fairly and in context—does not support Plaintiffs' tortured
interpretation, and does not supply a basis for summary judgment. As stated by the D.C. Circuit
in Keefe Co. v. Americable Int'l Inc., 169 F.3d 34, 38 (D.C. Cir. 1999), "[w]here more than one
plausible inference can be drawn from thc undisputed facts, summary judgment is not
appropriate."
	Second, even though the transaction or document review procedures followed by the
agencies do not, by themselves, fully satisfy the obligation to provide an accounting, Plaintiffs
offer no basis to preclude Interior from using the results of those procedures as part of the
accounting process to be performed. Indeed, Plaintiffs acknowledged as much in their
Opposition (at 20) to the third motion for partial summaryjudgment: "Documents supporting
settlement of the accounts of individual accountable officers may lead to the discovery of
additional evidence and, ultimately, they may be of assistance in providing plaintiffs with a full
and complete accounting of the Individual Indian Trust." Interior has not yet decided what use, if
any, those results might have in the accounting, but Plaintiffs fail to show a basis to preclude
their use in any way.
- 14 -
<< COB0000015 >>
Conclusion
	For the foregoing reasons, Plaintiffs' cross-motions for partial summary judgment should
be denied.
	Respectfully submitted,
Dated: March 1,2002	ROBERT D. McCALLIJM, JR.
	Assistant Attorney General
	STUART E. SCHIIFFER
Deputy Assistant Attorney General
	J. CHRISTOPHER KOHN
Director
	•.d	~
	P.	S QON R
eputy DirectoN.~
D.C. Bar No. 261495
JOHN T. STEMPLEWICZ
Senior Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
OF COUNSEL:
Sabrina A. McCarthy
Department of the Interior
Office of the Solicitor
Brian L. Ferrell
Department of Treasury
Bureau of the Public Debt
- 15-
<< COB0000016 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
	ELOUISE PEPION COBELL et al	)
		)
	Plaintiffs,	)
	)
)	Case No. l:96CV01285
)	(Judge Lamberth)
GALE A. NORTON, Secretary of the Interior et al.,)
		)
	Defendants.	)
DEFENDANTS' STATEMENT OF
GENUINE ISSUES OF MATERIAL FACT
CONCERNING PLAINTIFFS'
CROSS-MOTIONS FOR SUMMARY JUDGMENT
	Pursuant to LCvR 7.1(h) and 56.1, Defendants state the genuine issues of material fact
that preclude entry of partial summary judgment in favor of Plaintiffs, as sought by Plaintiffs in
their Cross-Motions for Summary Judgment as to (A) There Being No Temporal Limit to
Defendants' Obligation to Account, and (B) the Non-Settlement of Accounts, filed by Plaintiffs
on February 15, 2002, include the following:
	1.	Whether particular Plaintiffs or groups of Plaintiffs knew or should have known of
their claims at a certain point in time, which caused the statute of limitations to run and thus
limits the time period for which an accounting must be performed?
	2.	Whether, based upon the supporting materials submitted by Defendants in connection
with their third motion for partial summary judgment, there is at least a genuine issue of material
fact as to ~v1iether the administrative examination procedures of the General Accounting Office
("GAO') or Department of the Treasury took place during the period prior to 1951? See
<< COB0000017 >>
Declaration of Frank Sapienza (submitted with Defendants' third motion for partial summary
judgment, filed September, 2000), and other supporting materials filed therewith.
	3.	Whether, based upon the supporting materials submitted by Defendants in connection
with their third motion for partial summary judgment, there is at least a genuine issue of material
fact as to whether "settlements" occurred within the meaning of the administrative examination
procedures of GAO or Treasury with regard to pre-1951 disbursing agents' accounts? See
Sapienza Declaration, and other supporting materials filed therewith.
	Respectfully submitted,
Dated: March 1, 2002	ROBERT D. McCALLIJM, JR.
	Assistant Attorney General
	STUART B. SCHEFER
Deputy Assistant Attorney General
	J. CHRISTOPHER KOHN
Director
/
RAP.(SPO NER
Deputy Directo
D.C. Bar No. 261495
JOHN T. STEMPLEWICZ
Senior Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
<< COB0000018 >>
OF COUNSEL:
Sabrina A. McCarthy
Department of the Interior
Office of the Solicitor
Brian L. Ferrell
Department of Treasury
Bureau of the Public Debt
<< COB0000019 >>
rN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL, etaL,	)
		)
	Plaintiffs,	)
		)
	v.	)	Case No. I:96CV01285
	)	(Judge Lamberth)
GALE NORTON, Secretary of the Interior et al.,	)
	)
Defendants.	)
ORDER
	Upon consideration of Plaintiffs' Cross-Motions for Summary Judgment as to (A) There
Being No Temporal Limit to Defendants' Obligation to Account, and (B) the Non-Settlement of
Accounts, which were filed by Plaintiffs on February 15, 2002, Defendants' Opposition thereto,
and any replies, it is by this Court hereby,
	ORDERED that the aforementioned Motion is DENIED.
Date: _________________________
Honorable Royce C. Lamberth
United States District Judge
<< COB0000020 >>
cc:
Sandra P. Spooner
John T. Stemplewicz
Cynthia L. Alexander
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
Fax (202)514-9163
Dennis M Gingold, Esq.
Mark Brown, Esq.
1275 Pennsylvania Avenue, N.W.
Ninth Floor
Washington, D.C. 20004
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
2
<< COB0000021 >>
CERTIFICATE OF SERVICE
I declare under penalty of perjury that, on March 1, 2002, I served the foregoing
Defendants (1) Reply in Support of Motion to Withdraw Three Motions For Partial Summary
Judgment; and (2) Opposition to Plaintiffs' Cross-Motions for Summary Judgment; and
Defendants' Statement of Genuine Issues of Material Fact Concerning Plaintiffs? Cross-Motions
For Summary Judgment, by facsimile only, in accordance with their written request of October
31, 2001, upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Brown, Esq.
1712 N Street, NW	1275 Pennsylvania Avenue, NW.,
Washington, D.C. 20036-2976	Ninth Floor
202-822-0068	Washington, D.C. 20004
	202-318-2372
by facsimile, and by ordinary mail, upon:
Alan L. Balaran, Esq.
Special Master
1 717 Pennsylvania Ave., N.W.
12th Floor
Washington, D.C. 20006
by U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
and by hand delivery upon:
Joseph S. Kieffer
Court Monitor
420 7th Street, NW
Apt 705
Washington, DC 20004
Kevin P. Kingston
<< COB0000022 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
	ELOUISE PEPION COBELL et al	)
		)
	Plaintiffs,	)
		)
	v.	)	Case No. 1:96CV01285
)	(Judge Lamherth)
GALE A. NORTON, Secretary of the Interior, et al.,)
		)
	Defendants.	)
DEFENDANTS' STATEMENT OF
GENUINE ISSUES OF MATERIAL FACT
CONCERNING PLAINTIFFS'
CROSS-MOTIONS FOR SUMMARY JUDGMENT
	Pursuant to LCvR 7.1(h) and 56.1, Defendants state the genuine issues of material fact
that preclude entry of partial summary judgment in favor of Plaintiffs, as sought by Plaintiffs in
their Cross-Motions for Summary Judgment as to (A) There Being No Temporal Limit to
Defendants' Obligation to Account, and (B) the Non-Settlement of Accounts, filed by Plaintiffs
on February 15, 2002, include the following:
	1.	Whether particular Plaintiffs or groups of Plaintiffs knew or should have known of
their claims at a certain point in time, which caused the statute of limitations to run and thus
limits the time period for which an accounting must be performed?
	2.	Whether, based upon the supporting materials submitted by Defendants in connection
with their third motion for partial summary judgment, there is at least a genuine issue of material
fact as to whether the administrative examination procedures of the General Accounting Office
("GAO") or Department of the Treasury took place during the period prior to 1951? See
<< COB0000023 >>
Declaration of Frank Sapienza (submitted with Defendants' third motion for partial summary
judgment, tiled September, 2000), and other supporting materials filed therewith.
	3.	Whether, based upon the supporting materials submitted by Defendants in connection
with their third motion for partial summary judgment, there is at least a genuine issue of material
fact as to whether 'settlements" occurred within the meaning of the administrative examination
procedures of GAO or Treasury with regard to pre-1951 disbursing agents' accounts? See
Sapienza Declaration, and other supporting materials filed therewith.
	Respectfully submitted,
Dated: March 1, 2002	ROBERT D. MeCALLUM, JR.
	Assistant Attorney General
	STUART E. SCHIIFFER
Deputy Assistant Attorney General
	J. CHRISTOPHER KOT-IN
Director
RAPASPO NER'
	Deputy Directo
D.C. Bar No. 261495
JOHN T. STEMPLEWICZ
Senior Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
<< COB0000024 >>
OF COUNSEL;
Sabrina A. McCarthy
Department of the Interior
Office of the Solicitor
Brian L. Ferrell
Department of Treasury
Bureau of the Public Debt
<< COB0000025 >>
—	0'
IN TIlE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
	ELOUISE PEPION COBELL ,etaL,	)
		)
	Plaintiffs,	)
		)
	V.	)	Case No. 1:96CV01285
		)	(Judge Lamberth)
	GALE NORTON, Secretary of the Interior, ~i ~L,	)
		)
	     Defendants.	)
ORDER
	Upon consideration of Plaintiffs' Cross-Motions for Summary Judgment as to (A) There
Being No Temporal Limit to Defendants' Obligation to Account, and (B) the Non-Settlement of
Accounts, which were filed by Plaintiffs on Febniary 15, 2002, Defendants' Opposition thereto,
and any replies, it is by this Court hereby,
	ORDERED that the aforementioned Motion is DENIED.
Date: ________________________
Honorable Royce C. Lamberth
United States District Judge
<< COB0000026 >>
cc:
Sandra P. Spooner
John T. Stemplewicz
Cynthia L. Alexander
Commercial Litigation Branch
Civil Division
RO. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
Fax (202)514-9163
Dennis M Gingold, Esq.
Mark Brown, Esq.
1275 Pennsylvania Avenue, NW.
Ninth Floor
Washington, D.C. 20004
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
2
<< COB0000027 >>
CERTIFICATE OF SERVICE
I declare under penalty of perjury that, on March 1, 2002, 1 served the foregoing
Defendants' (1) Rcply in Support of Motion to Withdraw Three Motions For Partial Summary
Judgment; and (2) Opposition to Plaintiffs' Cross-Motions for Summary Judgment; and
Defendants' Statement of Genuine Issues of Material Fact Concerning Plaintiffs' Cross-Motions
For Summary Judgment, by facsimile only, in accordance with their written request of October
31, 2001, upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Brown, Esq.
1712 N Street, NW	1275 Pennsylvania Avenue, N.W.,
Washington, D.C. 20036-2976	Ninth Floor
202-822-0068	Washington, D.C. 20004
	202-318-2372
by facsimile, and by ordinary mail, upon:
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Ave., NW.
12th Floor
Washington, D.C. 20006
by U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
and by hand delivery upon:
Joseph S. Kieffer
Court Monitor
420 7th Street, NW
Apt 705
Washington, DC 20004