ELOUISE PEPION COBELL, et al., ) Plaintiffs-Appellees, V. GALE A. NORTON Secretary of the Interior, et al., Defendants- Appellants. APPELLANTS’ REPLY IN SUPPORT OF MOTION TO CONSOLIDATE RELATED APPEALS The government has moved to consolidate two appeals arising fiom the same litigation ulvolving overlapping issues. Briefing the cases separately would achieve no result other than duplicative filings that will waste the resources of the parties and the Court. As discussed in this Court’s prior decisions in this litigation, and in our motion for a stay pending appeal filed inNo. 03-53 14, this case was filed to compel the performance of an accounting of hnds held in Individual Indian Money accounts, In its initial decision, this Court affirmed what it understood to be “relativelymodest” relief, Cobellv.Norton, 240F.3d 1081,1109 (D.C. Cir. 2001). Theorder affirmed by this Court provided for aremand to the Department of the Interior to proceed with an accounting. The Court explained that the only actionable breach ofduty at issue in this suit was the failure to produce an accounting, and not related subsidiary matters such as computer operations, and it required the district court to amend its order accordingly. Id. at 1 106. The Court hrther admonished that the district court should “be mindful of the limits of its jurisdiction.” a. at 11 10. 1 ) ) NOS. 03-5262 & 03-5314 ) ) ) ) [Civil Action No. 96-1285 (D.D.C.)] ) ) 1 The district court complied with neither the letter nor the spirit ofthis Court’s decision. The district court did not amend its order and has asserted control over a broad range of agency operations only tangentially related to the performance of an accounting. The two injunctions now on appeal proceed fiom the same mistaken understanding ofthe nature o f h suit and the limits ofthejudicial role. In No. 03-5262, the government seeks review ofan injunction ’ that, in the name ofinfonnation security, asserts broad judicial control over Interior’s connection to the internet. In No. 03-53 14, the government seeks review of a sweeping “Structural Injunction” that purports to direct the operation of virtually all aspects of Indian trust management. Plaintiffs are correct when they assert that the internet injunction is narrower in scope than the Structural Injunction. But the government’s challenge to both injunctions involves the same legal and factual background, and the injunctions are defective formany ofthe same reasons. Indeed, the internet injunction could easily have been included as one ofthe many disparate requirements contained in the Structural Injunction. That it took the form of a separate order in no way suggests that separate handling is appropriate. Indeed, because the legal issues and factual background ofthe two appeals are overlapping, the briefing directed to the specific issues raised by the internet injunction will be farmore abbreviated than would be the case if the appeals were briefed separately. Plaintiffs make the interesting suggestion that recent legislation enacted by Congress pertaining to the performance ofan accounting has no bearing on the internet injunction because the latter does not involve Interior’s accounting duties. P1. Op. 5. To the extent that the injunction has no relation to the performance of an accounting, no plausible argument can be made to fit the order within the scope ofthe district court’s jurisdiction and this Court’s instructions on remand. In any event, as discussed in our motion - 2 - for a stay pending appeal, the structural injunction would be without basis even absent new legislation, and the internet injunction is similarly without basis. The only ground offered for demanding that the two related appeals proceed on separate tracks is plaintiffs’ suggestion that the internet injunction appeal might be a candidate for summaryreversal. Plaintiffs base this suggestion on the proposition that the government’s appeal may be unripe. Plaintiffs do not explain how an appeal from a preliminary injunction could be dismissed on ripeness grounds. The injunction has had an immediate and improper cooercive effect. That the district court has yet to determine whether to order disconnection pursuant to the terms ofthe injunction casts no doubt on the ripeness ofthe appeal. Moreover, ifplaintiffs had intended to move for summary affirmance in No. 03-5262,, they would presumably have done so by the deadline for filing dispositive motions which passed onNovember 13, 2003. - 3 - CONCLUSION For the foregoing reasons, and for the reasons stated in our motion, the appeals in No. 03-5262 and No. 03-5314 should be consolidated. Respectfully submitted, PETER D. KEISLER Assistant Attomev General GREGORY G. KATSAS Deputy Assistant Attomev General ROSCOE C. HOWARD, JR. United States Attorney ROBERT E. KOPP MARK B. STERN THOMAS M. BONDY CHARLES SCARBOROUGH ALISA B. KLEIN /202) 5 14-5089 L U f J - q Attorneys, Appellate Staff Civil Division, Room 9 108 Department of Justice 601 D Street, N.W. Washington. D.C. 20530 NOVEMBER 2003 - 4 - Keith M. Harper Native American Rights Fund 1712 N Street, N.W. Washington, D.C. 20036-2976 (202) 785-4166 Earl Old Person (pro se) Blackfeet Tribe P.O. Box 850 Browning, MT 59417 CERTIFICATE OF SERVICE I hereby certify that on this 28th day ofNovember, 2003, I caused copies of the foregoing reply to be sent to the Court and to the following by hand delivery: The Honorable Royce C. Lamberth United States District Court United States Courthouse Third and Constitution Ave., N.W. Washington, D.C. 20001 and to the following by federal express, overnight mail: Elliott H. Levitas Law Office of Elliott H. Levitas 1 100 Peachtree Street Suite 2800 Atlanta, GA 30309-4530 (404) 8 15-6450 and to the following by regular, first class mail: Dennis Marc Gingold Law Office of Dennis Marc Gingold 607 14th Street, N.W., Box 6 Washington, D.C. 20005 CHARLES W. SCARBOROUGH