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. 
)
) 
_________________________________________ ) 
DEFENDANTS' EMERGENCY MOTION FOR DISSOLUTION OF THE 
AUGUST 31, 2004 TEMPORARY RESTRAINING ORDER INSOFAR AS IT 
RESTRAINS TRIBAL ACQUISITIONS FUNDED BY THE DEPARTMENT OF 
ENERGY AS PART OF ITS FISH AND WILDLIFE MITIGATION PROGRAM 
Defendants respectfully move for an order dissolving the Court's August 31, 2004 
Temporary Restraining Order ("TRO") insofar as it prohibits tribal land acquisitions under 25 
CFR Part 152 that are funded by the Bonneville Power Administration ("BPA") of the United 
States Department of Energy ("DOE") pursuant to its statutory obligation to protect, mitigate and 
enhance fish and wildlife affected by federal hydroelectric power projects in the Columbia River 
Basin. The inability to consummate pending and future transactions under this program will 
create an unwarranted hardship on the wildlife mitigation program and the Indian tribes that are 
partners in the program. 
ARGUMENT 
The Pacific Northwest Electric Power Planning and Conservation Act requires DOE, 
through its federal power marketing entity BPA, to "protect, mitigate, and enhance fish and 
wildlife to the extent affected by the development and operation of any hydroelectric project of 
the Columbia River and its tributaries . . . ." 16 U.S.C. § 839b(h)(10)(A). One of the ways in 
Case No. 1:96CV10285 
(Judge Lamberth)
which BPA satisfies this statutory obligation is by funding the acquisition by tribes of lands to be 
permanently protected and managed by them as fish and wildlife habitats. Declaration of 
Gregory K. Delwiche, Acting Vice President of Environment, Fish and Wildlife, BPA, executed 
Sept. 7, 2004 ("Delwiche Decl.") and submitted herewith, at ¶ 3. Such acquisitions can include 
lands held by the Department of the Interior and subject to regulation under 25 CFR Part 152. 
Several pending mitigation land acquisitions are scheduled to close before the end of the 
fiscal year, September 30, 2004.1 Delwiche Decl. at ¶ 5. For all of these parcels, the relevant 
appraisals, hazardous waste surveys, and related federal compliance actions (such as those related 
to the National Environmental Policy Act and the Endangered Species Act) have already been 
performed by BPA. Id. at ¶ 6. If Defendants are not permitted to allow these mitigation sales to 
go forward, the delay to BPA in acquiring these important wildlife lands would create extreme 
budgeting difficulties for that agency and, in some cases, could result in a loss of funding to 
acquire the subject lands because of other pressing mitigation needs. Id. On a broader scale, 
effectively restraining BPA from fulfilling its statutory mandate would impose an unreasonable 
and unnecessary hardship on the fish and wildlife mitigation program, as well as on the Indian 
tribes who receive the subject lands. On the other hand, allowing this important public function 
to continue would result in no injury to Plaintiffs. Therefore, the TRO should be dissolved 
insofar as it restrains Defendants from allowing these land transactions to proceed, both with 
respect to those that are already pending and those that may be scheduled in the future.2 
CONCLUSION 
1 DOE reports that the transactions are all negotiated sales pursuant to 25 CFR § 152.25. 
2 Counsel for Defendants conferred with counsel for Plaintiffs concerning this motion, 
and Plaintiffs oppose the motion. 
2
For all of the foregoing reasons, Defendants respectfully request that the Court issue an 
order dissolving the TRO insofar as it restrains Defendants from permitting the sale of land to 
tribes in transactions under 25 CFR Part 152 that are funded by BPA pursuant to its mitigation 
responsibilities under the Pacific Northwest Electric Power Planning and Conservation Act. 
Dated: September 8, 2004 
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 
/s/ Gino D. Vissicchio 
SANDRA P. SPOONER 
Deputy Director 
D.C. Bar No. 261495 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
GINO D. VISSICCHIO 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
3
CERTIFICATE OF SERVICE 
I hereby certify that, on September 8, 2004 the foregoing Defendants' Emergency Motion 
for Dissolution of the August 31, 2004 Temporary Restraining Order Insofar as it Restrains 
Tribal Acquisitions Funded by the Department of Energy as Part of its Fish and Wildlife 
Mitigation Program 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
SEF-08-2004 08: 15AM FROM-RED b t ON HOTEL 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPIBN COBELL, et. al., 
Case No, 1: 96CV01285 
(Judge Lamberth) ) 
) 
1 
1 
1 
Plaintiffs, 
V. 
GALE NORTQN, Secretary of the Interior, et.al., 
Defendants 1 
1 
) 
839b(h)(PO)(A). 
3, One way that BPA provides such mitigation is by funding the acquisition by tribes Of 
lands to be pcrmanently prorated and managed by them as fish and wildlife habitat. 
Those acquisitions can include lands covered by the regulations at 25 CFR Part 152. 
4. Upon receipt of information about the temporary restraining order issued in this case 
relating to actions under the Part 152 regulations, I asked my staff to compile a bS1 Of 
affected BPA mitigation lands. 
5. Our initial review indicates we have a number of: affected pending fish and wildlife land 
acquisidonas, as show in Table 1, below: 
DECLARATION OF GREGORY K- DELWICRE 
1. 1, Oregory K. Delwiche, am the Acting Vice President of Environment, Fish and wildlife 
nt the Bonnelnlle Power Administration (BPA), a federal power markcting entity of the 
Unired Srares Department of Energy, headquartered in Portland, Oregon. 
2. Under the provisions of the Pacific Northwest Elecmc Power Planning and Conservation 
Act, BPA is required 10 protect, mitigate, and enhance fish and wildlife affected by 
federd hydropower projects in the Columbia River Basin, consistent with the progrm 
developed by the Northwest Power and Conservation Council. 16 U.S.C. 5 
1 
EXHIBIT 1 
Defendants' Emergency Motion for Dissolution of the 
August 31,2004 Temporary Restraining Order Insofar as it 
Restrains Tribal Acquisitions Funded by the Department of 
Energy as Part of its Fish and Wildlife Mitigation Program TABLE 1 
6. All appraisals, hazardous waste surveys, and related federal compliance actions (such 89 
compliance with the National EnvironmenLal Policy Act, and the Endangered Species 
Act) have been conducted on the parcels. The inability to close on these parcels by the 
end of tlus fiscal year (September 30,2004) will unnecessarily delay the acquisition af 
imponant and valuable wildlife mitigation lands. In addition, a delay beyond the fiscal 
year creates extreme difficulties in terms of budgeting and in some cases could mean the 
loss of funding for acquisition of the lands given other pressing mitigation needs. 
7. BPA has exercised due chligence in the acquisition of imponant and valuable wildlife 
mitigation lands and the temporary restraining order will create a hardship on BPA’s 
wildlife mitigation program and the h&an Tribes that are our pamen in the program. 
I declare under penalty of perjury that the foregoing is true and correct to the best of my 
knowledge, executed this 
Gregory K. Delwiche 
Acting Vice President 
3-7 
Environment, Fish and Wildlife 
Bonneville Power Adrmnisuauon 
United States Department of Energy 
T-265 P 003/003 F-666 
thc day of September, 2004, in Seattle, Washington. 
2 IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
__________________________________________ 
ELOUISE PEPION COBELL et al., 
Plaintiffs, 
) 
) 
) 
) 
Case No. 1:96CV10285 
(Judge Lamberth) 
v. ) 
) 
GALE NORTON, Secretary of the Interior, et al., ) 
Defendants. 
) 
) 
__________________________________________ ) 
ORDER 
This matter coming before the Court on Defendants' Emergency Motion For Dissolution 
Of The August 31, 2004 Temporary Restraining Order Insofar As It Restrains Tribal 
Acquisitions Funded By The Department Of Energy As Part Of Its Fish And Wildlife Mitigation 
Program, Dkt. ______, and any response thereto, the Court finds that the motion should be 
GRANTED. 
IT IS THEREFORE ORDERED that the Temporary Restraining Order dated August 31, 
2004 is dissolved insofar as it restrains Defendants from permitting the sale of land to tribes in 
transactions under 25 CFR Part 152 that are funded by the Bonneville Power Administration of 
the Department of Energy pursuant to its mitigation responsibilities under the Pacific Northwest 
Electric Power Planning and Conservation Act. 
SO ORDERED this ____ day of __________ 2004. 
_______________________________ 
ROYCE C. LAMBERTH 
United States District Judge cc: 
Sandra P. Spooner, Esq 
John T. Stemplewicz, Esq 
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 K. Brown, Esq. 
607 14th Street, NW, Box 6 
Washington, D.C. 20005 
Fax (202) 318-2372 
Keith Harper, Esq. 
Richard A. Guest, 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 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530