HE UNITED STATES COURT OF APPEALS 
R THE DISTRICT OF COLUMBIA CIRCUlT 
ELOUfSE PEPION COBELL, e l 81.. i 
Plainti FFs-Appellees, 1 
) 
i [Civil Action No. 96-12Sj (D.D.C.)] GALE A. NORTON. 
Sccrctary of tlic Interior, ct al., 
DcFendants-Appellants. 
) 
I 
EMERGENCY hlOTlON FOR STAY OF JULY 12,2005 ORDER PENDING 
ORAI, ARGUhlENT ON THE STRUCTURAL INJUNCTION APPEAL 
(APPEAL NO. 05-5068), AND PENDING FURTHER OIWER OF THIS COURT 
INTRODUCTION AND SUMR.IA1lY 
Pursuant to Rule S of tlie Federal Rules o r Appellate Procedure and 2s U.S.C. 1651, 
defendants-appellants, the Sccretaiyof the Interior, el al., respectfully ask this Court to stay the order 
entered by tlie district court on July 12,2005 (Docket C3072), pending the September 16, 2005 oral 
argument on tlic ~ovcmiiicnt’s appeal From the structural injunction entered in this case, g Appeal 
No. 05-5065, and pending liirtlier order orthis Court. Compliance with the July 12 order is required 
beginning Tuesday, August 2 , 2005. We thus request an immediate administrative stay to permit 
the Court to consider this niotion on tlie merits. i\ notice of appeal from the July 12 order and 
motion to stay tlie order were filcd with tlic district court on July 25, 2005. The district cotirl lias not 
yet ruled on tlie government’ s stay request. Bccause of‘thc imminent August 2 compliance date, wc 
are filing this stay niotion to enabie this Court’s timciy consideration of the matter.’ 
As we explain below, the July I 2 order is expressly linked to the structural injunction and 
could not survive its vacatur. In light of tlie September 16 argument on the structural injunction, this 
Court will be in a position to dctcmiinc wlietlicr full bricling on the July 12 order would be useFtiI. 
‘Pursuant to Local Rule S, plaintiffs’ counsel has bcen given advance notice, by telcphone, 
of tlie filing of this motion. Given the close relationship between this motion and the structural injunction appeal, we ask that 
this motion be considered by the panel assigned to the structural injunction appeal. 
The July 12 order directs the Department of the Interior to include in all written 
communications with any of the hundreds of thousands of Native Americans comprising the class 
a notice that declares: 
Evidence introduced in the Cobell case shows that any information related to the IIM 
Trust, IIM Trust lands, or other IIM Trust assets that current and former IIM account 
holders receive from the Department of the Interior may be unreliable. Current and 
former IIM Trust account holders should keep in mind the questionable reliability of 
IIM Trust information received from the Department of the Interior if and when they 
use such information to make decisions affecting their IIM Trust assets. 
Order at 2 (third emphasis added). The notice must accompany all written communications “without 
regard to subject matter,” Op. 22, and its “functional effect” is to require that the notice accompany 
all written communications made by the Interior Department in the “ordinary course of business,” 
Op. 21-22, including those having nothing to do with IIM accounts. The stated purpose of the order 
is to discourage trust beneficiaries from making trust-related decisions based on information supplied 
by Interior until the mammoth “accounting” ordered by the court in the structural injunction is 
complete. See Op. 18, 19, 20 & n.8. 
The July 12 order is remarkable in every respect. Although it is explicitly premised on the 
structural injunction – which has itself been stayed by this Court, with oral argument imminent – the 
district court has required compliance with the order beginning August 2, 2005 and has not ruled on 
the government’s motion for a stay pending appeal. 
There is no known precedent for an order requiring a defendant to give notice, not of the 
existence of class action litigation or of the plaintiffs’ allegations, but of the district court’s 
preliminary assessment of unidentified “evidence” with the stated purpose of influencing the primary 
conduct of the class. But even apart from this fundamental defect, the order cannot survive the 
vacatur of the structural injunction. The premise of the July 12 order is that trust beneficiaries 
should not enter into trust-related transactions until the “accounting” ordered by the district court is 
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complete. As we have shown at length in our structural injunction briefs, the multibillion dollar 
“accounting” ordered by the district court should never be implemented. The district court had no 
power to order Interior to spend billions of dollars on an accounting endeavor that Congress has not 
authorized, much less required. As this Court explained, Congress has made clear that it never had 
“‘any intention of ordering an accounting on the scale of that which has now been ordered by’ the 
district court.” Cobell v. Norton, 392 F.3d 461, 466 (D.C. Cir. 2004) (quoting H.R. Conf. Rep. 108- 
330, at 118). Indeed, “‘the disparity between the costs of the judicially ordered accounting, and the 
value of the funds to be accounted for, rendered the ordered accounting, as one senator put it, ‘nuts.’” 
Ibid. (quoting 149 Cong. Rec. at S13,786 (2003) (statement of Sen. Dorgan)). 
Even plaintiffs do not suggest that the court-ordered accounting should be implemented. To 
the contrary, their principal argument on the structural injunction appeal is that the case should be 
remanded to the district court because the injunction is “impossible” to implement. Pl. Br. 6, 7-12. 
Under the circumstances, there can be no serious contention that a stay of the July 12 order 
would cause the class members irreparable harm. Indeed, the order was issued nine years into the 
litigation and was not prompted by any event other than the filing of plaintiffs’ motion for a classwide 
notice, which was itself pending for more than eight months. See Docket #2746 (filed 
10/27/04). 
By contrast, a stay will prevent hundreds of thousands of persons from receiving the 
inherently misleading notice required by the district court – harm that cannot be undone. Without 
any pertinent evidence, the court declares that “all trust-related information Interior communicates 
to Indian beneficiaries is inherently unreliable,” Op. 11, and orders Interior to warn trust 
beneficiaries of the “questionable reliability” of the information in order to discourage them from 
taking action on it. Order at 2. The district court condemns the Department of the Interior as a 
“degenerate” trustee of the Indian trusts. Op. 11. It declares that the “entire record in this case” 
reveals bureaucratic incompetence on a colossal scale and “outright villainy.” Ibid. It denounces 
the “‘modern’ Interior department” as a “dinosaur – the morally and culturally oblivious hand-me- 
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down of a disgracefully racist and imperialist government that should have been buried a century 
ago, the last pathetic outpost of the indifference and anglocentrism we thought we have left behind.” 
Op. 3. And against this asserted “background of mismanagement, falsification, spite, and obstinate 
litigiousness,” the court purports “to evaluate the general reliability of the information Interior 
distributes to IIM account holders.” Op. 11. 
As our structural injunction briefs explain at length, there is no record evidence that could 
support the district court’s extraordinary pronouncements. To the contrary, the record demonstrates 
an unswerving commitment by the government to implement the mandate of this Court’s original 
decision in this case, Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001). See Reply Br. 4-7. The 
smattering of incidents described by the district court (Op. 4-11) reveals nothing about the present 
state of Interior’s trust information and shows nothing but Interior’s good faith. 
STATEMENT 
A. Background. 
The extensive background of this case is set out in detail in our opening brief on the structural 
injunction appeal. Interior holds approximately $400 million in trust for the benefit of individual 
Indians. As of December 31, 2000, these funds were maintained in approximately 260,000 separate 
Individual Indian Money (IIM) accounts. 
In 1994, Congress enacted the American Indian Trust Fund Management Reform Act, Pub. 
L. No. 103-412, 108 Stat. 4239 (“1994 Act”). Section 102(a) provides that “[t]he Secretary shall 
account for the daily and annual balance of all funds held in trust by the United States for the benefit 
of an Indian tribe or an individual Indian which are deposited or invested pursuant to the Act of June 
24, 1938 (25 U.S.C. § 162a).” 1994 Act, § 102, 25 U.S.C. 4011(a). 
Plaintiffs brought this class action in 1996. In 1999, the district court issued a declaratory 
judgment holding that defendants had an enforceable duty to account for the balances in IIM 
accounts. Cobell v. Babbitt, 91 F. Supp. 2d 1, 28-31, 56 (D.D.C. 1999). In 2001, this Court largely 
affirmed, rejecting the government’s contention that Congress had committed to the agency’s 
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discretion decisions regarding the extent to which to review transactions that pre-dated the 1994 Act. 
Cobell v. Norton, 240 F.3d 1081, 1102 (D.C. Cir. 2001). The Court held that agency action had been 
unreasonably delayed under governing APA standards, 5 U.S.C. 706(1), id. at 1108, and noted that 
the district court had properly remanded the matter to Interior, leaving to the agency the choice of 
how the accounting would be conducted. Id. at 1104, 1109. 
In 2002, following a 29-day trial, the district court held Secretary Norton in contempt and 
declared that she and Assistant Secretary McCaleb could “rightfully take their place ... in the 
pantheon of unfit trustee-delegates.” Cobell v. Norton, 226 F. Supp. 2d 1, 161 (D.D.C. 2002). 
Based on its contempt findings, the district court terminated the remand to the agency, id. at 152, and 
announced that it would issue structural injunctions governing the performance of accounting 
activities and trust management generally. Id. at 148-49. To that end, the district court ordered 
Interior to submit plans for an historical accounting and for achieving compliance with fiduciary 
obligations, to be evaluated, together with plans submitted by plaintiffs, in a “Phase 1.5” trial. The 
plan submitted by Interior in response to this order set out a program to complete an accounting 
meeting the requirements of this Court’s 2001 decision within five years at a cost then estimated at 
$335 million, subject to congressional appropriations. Plaintiffs urged that an accounting was 
impossible and advocated a model that would, in their view, reflect the revenue generated by their 
trust assets over more than a century. 
In July 2003, this Court vacated the contempt ruling, explaining that the record demonstrated 
that “in her first six months in office Secretary Norton took significant steps toward completing an 
accounting” and that the “uncontested facts” were “inconsistent with a finding that Secretary Norton 
failed to” initiate an historical accounting project. Cobell v. Norton, 334 F.3d 1128, 1148 (D.C. Cir. 
2003). This Court described the district court’s reasoning with respect to the remaining contempt 
charges as “mystifying,” id. at 1149, and “inconceivable,” id. at 1150. 
In September 2003, the district court issued a sweeping “structural injunction” that 
encompassed both the performance of an accounting, and the implementation of a comprehensive 
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program of trust reform. Cobell v. Norton, 283 F. Supp. 2d 66 (D.D.C. 2003). In issuing the 
structural injunction, the district court stressed that it would treat its contempt findings as 
“established,” notwithstanding this Court’s decision vacating the contempt ruling. Id. at 85. 
Congress responded to the injunction with legislation enacted in November 2003, as part of 
the FY 2004 Interior appropriations statute, Pub. L. No. 108-108. The legislation amended 
substantive law to remove any legal requirement to conduct historical accounting activities before 
the legislation’s expiration on December 31, 2004. 
On December 10, 2004, this Court vacated all aspects of the structural injunction, except for 
a single filing requirement contained in the non-accounting portion of the injunction. Cobell v. 
Norton, 392 F.3d 461 (D.C. Cir. 2004). This Court did not rule on the government’s argument that 
the accounting provisions of the injunction were fatally flawed even without regard to Pub. L. No. 
108-108. This Court explained, however, that the legislation had been enacted “to clarify Congress’s 
determination that Interior should not be obliged to perform the kind of historical accounting the 
district court required,” 392 F.3d at 466, noting that the order’s initial cost estimates ranged from 
$6 billion to $12 billion, ibid. In vacating the remainder of the injunction, this Court rejected the 
district court’s assertion that it could formulate and direct agency plans, stressing that the APA 
“‘empowers a court only to compel an agency ... to take action upon a matter, without directing how 
it shall act.’” Id. at 475 (quoting Norton v. Southern Utah Wilderness Alliance, 124 S. Ct. 2373, 
2379 (2004)). 
On February 23, 2005, the district court – acting sua sponte and without briefing – reissued 
the accounting portion of the structural injunction without modification. The court dismissed Pub. 
L. No. 108-108 as “a bizarre and futile attempt at legislating a settlement of this case,” 2/23/05 
Mem. Op. 14, and concluded that this Court’s decision vacating the structural injunction was “not 
relevant for the present purpose,” id. at 2. The district court incorporated by reference the lengthy 
opinion that it had issued in connection with the 2003 structural injunction, see id. at 3 & n.1, and 
announced that it would retain jurisdiction over the matter until March 27, 2011, see id. at 14. 
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Although the district court purported to adopt a modified version of Interior’s historical 
accounting plan, the requirements of the injunction bore no meaningful resemblance to the Interior 
plan. Under the Interior plan, Interior would have provided each holder of an IIM account open as 
of the enactment of the 1994 Act or thereafter, with an accounting of all transactions in the account 
since 1938. Interior would produce, based on Interior’s paper and electronic bookkeeping records, 
a ledger for each open IIM account that describes all of the post-1938 transactions in each account. 
By contrast, the injunction would also require Interior to provide statements describing and verifying 
all transactions in land since 1887. Moreover, the injunction would require Interior to provide 
account statements for all IIM accounts open at any time in history since 1887, regardless of whether 
the accounts were long closed. 
This Court granted the government’s request for a stay pending appeal and expedited 
briefing. Oral argument is scheduled for September 16, 2005. 
B. The July 12, 2005 Order. 
The July 12 order was issued in response to plaintiffs’ “Motion to Require Defendants to 
Give their Beneficiaries Notice of their Continuing Inability or Refusal to Discharge their Fiduciary 
Duties.” Docket #2746. The motion was filed in October 2004, eight years into the litigation, in the 
period between the oral argument and the December 2004 decision on the original structural 
injunction appeal. The motion did not cite any development in the litigation as the impetus for the 
motion.
The motion remained pending for more than eight months. Meanwhile, this Court vacated 
the original structural injunction; the district court reissued the historical accounting provisions of 
that injunction; and this Court stayed the reissued provisions. 
On July 12, 2005, the district court granted plaintiffs’ motion. The July 12 order requires that 
beginning August 2, 2005, Interior must include with any written communication to any current or 
former IIM account holder, a notice that states in relevant part: 
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Evidence introduced in the Cobell case shows that any information related to the IIM 
Trust, IIM Trust lands, or other IIM Trust assets that current and former IIM account 
holders receive from the Department of the Interior may be unreliable. Current and 
former IIM Trust account holders should keep in mind the questionable reliability of 
IIM Trust information received from the Department of the Interior if and when they 
use such information to make decisions affecting their IIM Trust assets. 
Order at 2 (third emphasis added). The order applies to every written communication with a current 
or former IIM account holder, “without regard to subject matter.” Op. 22. 
In the accompanying opinion, the court declared that “all trust-related information Interior 
communicates to Indian beneficiaries is inherently unreliable,” Op. 21, citing the “factual record, 
composed of the accumulated detritus of nine years spent examining Interior’s odious performance 
as Trustee-Delegate for the Indian trust,” ibid. The court reasoned that “the underlying rationale for 
enforcing the right to an accounting is to facilitate informed decision-making with respect to the 
disposition of trust assets.” Op. 18 (quotation marks omitted). In the court’s view, “[t]hat means, 
at the very least, that the trust beneficiaries should retain all or most of their trust assets in as 
unaltered a state as practicable, until Interior completes the required accounting[.]” Ibid. (quotation 
marks omitted). Indeed, the court opined that “the only way to fully safeguard this right [to the 
court-ordered accounting] would be to suspend all trust-related decision-making until this case 
concludes and Interior actually provides the required accounting, so that the maximum number of 
decisions affecting trust assets could be as fully informed as possible.” Op. 20 n.8. Because such 
a course of action was “impracticable,” the court concluded that the class-wide notice “would have 
to suffice as an interim measure.” Ibid. 
REASONS WHY THE STAY SHOULD BE GRANTED 
I. The Structural Injunction Is On Appeal And Has Been Stayed, And 
The July 12 Order Cannot Survive Vacatur Of The Structural Injunction. 
Purporting to invoke its power under Rule 23(d) of the Federal Rules of Civil Procedure, the 
district court has ordered the Department of the Interior to include in all written communications to 
the hundreds of thousands of present or former IIM account holders a notice declaring, based on 
“evidence introduced” in the litigation, the “questionable reliability” of any trust-related information 
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received from Interior. This order is extraordinary even apart from the context in which it was 
issued. Rule 23(d) authorizes a district court in class action litigation to require a notice advising 
the class of procedural matters, such as the pendency of the litigation, the right to opt-out, or the 
proposed extent of the judgment.2 Communications with class members may be regulated to protect 
against the types of abuses associated with class actions, such as barratry-like solicitation of nonparty 
class members, though only in a “carefully drawn order that limits speech as little as possible” and 
that is based on a “clear record and specific findings that reflect a weighing of the need for a 
limitation and the potential interference with the rights of the parties.” Gulf Oil Co. v. Bernard, 452 
U.S. 89, 100 & n.12, 101, 102 (1981). No precedent exists for an order requiring a defendant to give 
class members notice of the district court’s preliminary unfavorable assessment of the “evidence” 
introduced in the case, with the stated purpose of influencing the primary conduct of class members. 
Taken in context, the July 12 order is even more difficult to fathom. The order is expressly 
linked to the massive accounting required under the reissued structural injunction. As the opinion 
makes clear, the court issued the July 12 order to discourage class members from acting upon any 
trust-related information until after the court-ordered accounting is complete. See, e.g., Op. 20 (“The 
court-ordered accounting is designed to promote class members’ rights to make fully informed 
choices about their trust assets. If there are no more informed decisions to be made, or if all the trust 
assets are gone, then the court-ordered accounting will be useless to the Indians.”). Indeed, the court 
regarded the July 12 order as the practical alternative to an order “suspend[ing] all trust-related 
decision-making until this case concludes and Interior actually provides the required accounting,” 
which, in the district court’s view, would have been “the only way to fully safeguard” the right to 
2 See Rule 23(d) (“In the conduct of a [class action], the court may make appropriate orders: 
... (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of 
the action, that notice be given in such manner as the court may direct to some or all of the members 
of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members 
to signify whether they consider the representation fair and adequate, to intervene and prevent claims 
or defenses, or otherwise to come into the action; [or] ... (5) dealing with similar procedural 
matters.”) (emphasis added). 
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the court-ordered accounting. Id. at 20 n.8; see also id. at 18 (“the trust beneficiaries should retain 
all or most of their assets in as unaltered a state as is practicable, until Interior completes the required 
accounting”) (quotation marks omitted). 
As our structural injunction briefs explain, however, the accounting ordered by the district 
court should never be implemented. The district court could not properly order Interior to spend 
billions of dollars on an endeavor that Congress never authorized, much less required. Even 
plaintiffs do not suggest that the injunction will be implemented. Their primary argument on appeal 
is that the case should be remanded to the district court because the injunction is “impossible” to 
implement. Pl. Br. 6, 7-12.3 
The scope of the July 12 order is directly linked to the particulars of the structural injunction. 
For example, the July 12 order, which applies to all written communications “without regard to 
subject matter,” Op. 22, is intended to discourage any transactions in trust land. Indeed, the July 12 
order is an expansion of a September 2004 order requiring that notice of the pendency of the 
litigation be included in communications concerning land sales. See Op. 12-14, 18; Cobell v. 
Norton, 225 F.R.D. 41, 53-54 (D.D.C. 2004); Cobell v. Norton, 224 F.R.D. 266, 288-89 (D.D.C. 
2004). But as our structural injunction briefs explain, the district court had no basis for requiring 
Interior to describe and verify transactions in trust land. That requirement disregards the plain terms 
of the 1994 Act – which requires Interior to account for the balance of funds in IIM accounts – as 
well as this Court’s recognition that “funds have quite a different legal status from the allotment land 
itself.” 392 F.3d at 464. Plainly, Congress did not expect Interior to reconstruct the entire process 
of “fractionation” of land that has yielded over the past century land ownership interests recorded 
to the 42nd decimal point. See H.R. Rep. No. 102-499, at 28 (1992). 
3 Plaintiffs would have the district court order the government to pay billions of dollars as 
a substitute for the court-ordered accounting, a “remedy” that, as our briefs explain, is obviously 
impermissible. 
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Likewise, the July 12 order applies to all written communications with any current or former 
IIM account holder. But as our structural injunction briefs also explain, the district court had no 
basis for ordering Interior to produce account statements for accounts that were closed before the 
enactment of the 1994 Act. Closed accounts have no balance, and Congress’s clear premise in 
enacting the 1994 Act was that the account statements would be produced for the roughly 300,000 
open accounts. See, e.g., H.R. Rep. No. 102-499, at 26. 
The structural injunction has been stayed and oral argument is imminent. The July 12 order 
would be remarkable under any circumstances, but its timing is particularly difficult to comprehend. 
A stay that preserves the status quo should be entered pending oral argument on the structural 
injunction appeal and further order of this Court. In light of the oral argument, the Court can 
determine whether full briefing on the July 12 order would be useful. 
II. A Stay That Preserves The Status Quo Will Not Harm The Class 
And Will Prevent Class Members From Receiving The Inherently 
Misleading Notice Required By The District Court. 
There can be no serious contention that a stay of the July 12 order would harm the class. As 
just explained, plaintiffs do not suggest that the accounting ordered by the district court will ever be 
implemented. Thus, they could not plausibly contend that the class should be warned to avoid trustrelated 
transactions pending the completion of that accounting. 
Nor could plaintiffs identify any other pressing need for a class-wide notice. Plaintiffs’ 
motion for a class-wide notice was filed in October 2004, eight years into the litigation. The motion 
did not cite any development in the litigation as its impetus. Nor did the district court, in granting 
the motion eight months later, identify any impetus for the July 12 order other than the fact that 
plaintiffs had filed a motion. Although there were significant developments in the litigation in that 
eight-month interval – this Court vacated the original structural injunction and stayed the reissued 
injunction – the district court, for obvious reasons, did not suggest that those developments provided 
a basis for a notice warning the class that all of Interior’s trust-related information is of “questionable 
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reliability.” Since there was no particular impetus for the July 12 order, there can be no plausible 
objection to a stay. 
By contrast, a stay is necessary to prevent hundreds of thousands of trust beneficiaries from 
receiving the inherently misleading notice ordered by the district court. The harm produced by such 
notices cannot in any meaningful sense be undone. A notice declaring that “any” trust-related 
information “may be unreliable” is hardly calculated to produce informed decision-making. The 
result would be to undermine the ongoing relationship between the Interior Department and hundreds 
of thousands of individual Indians, not only with respect to their IIM accounts, but in their day-today 
relationship on a wide variety of subjects for which Interior furnishes essential services. The 
suggestion in the opinion that trust beneficiaries can anticipate significant monetary payments as a 
result of this litigation (e.g., Op. 23 n.10) is particularly misleading and creates expectations that are 
entirely unwarranted.4 
The court had no authority to compel Interior to impugn the integrity of the information that 
it supplies to trust beneficiaries based on the court’s casual assessment of unidentified “evidence” 
that is not embodied in a judgment of any kind. Indeed, the July 12 order would prejudge the 
outcome of the accounting enterprise itself, by declaring in advance that Interior’s trust records are 
inadequate to produce reliable account statements. The order disregards the limitations on the 
judicial role underscored by this Court in vacating the original structural injunction. See 392 F.3d 
at 472, 475 (discussing 5 U.S.C. 706(1)). 
The episodes cited by the district court in its “Factual History” of this nine-year litigation do 
not, even on their face, reveal anything about the present state of Interior’s trust information. For 
example, the court notes its 2002 decision holding Secretary Norton in contempt. Op. 7. But that 
decision had nothing to do with the accuracy of trust records, and it was vacated by this Court. 
4 Although the district court asserts that “[m]any class members depend on the IIM trust as 
their primary (or sole) source of income,” Op. 23 n.10, the record shows that the overwhelming 
majority of land-based accounts – about 96% – receive annual leasing income of less than $250. See 
2003 Cason Decl. at 2 (Docket #2367). 
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Likewise, the district court cites its 2002 referral of government counsel to the Committee 
on Grievances. The referral was based on the district court’s belief that sending completed account 
statements to class members constituted impermissible contacts with represented parties. It had 
nothing to do with the accuracy of trust information. Moreover, the Committee determined that no 
action was warranted. See Op. 7-8. 
The district court’s charges of “retaliation” are particularly obscure. The court refers to the 
allegation of Mona Infield, a Bureau of Indian Affairs employee who in 2000 charged that her entire 
office was being moved from Albuquerque, New Mexico to Reston, Virginia, in retaliation for 
affidavits she had submitted in the case. Op. 8. The charge was contested, see Docket #684, and 
the dispute was settled when Ms. Infield was allowed to continue working out of the Albuquerque 
office. See Op. 9. None of these events reflects upon the accuracy of trust information. 
Equally unfounded is the district court’s assertion that Interior responded to the September 
2004 order restricting communications about land transactions by withholding checks from trust 
beneficiaries. Op. 10. As Interior’s uncontradicted affidavits made clear, the two complaining 
beneficiaries had received their checks in the ordinary course. See Docket #2845; Cobell v. Norton, 
355 F. Supp. 2d 531, 531-36 (D.D.C. 2005). The district court nevertheless declared that it would 
treat plaintiffs’ allegations of retaliation as “conceded” unless Secretary Norton personally appeared 
in court and testified regarding her allegedly retaliatory intentions. 355 F. Supp. 2d at 543. The 
Secretary declined to do so, noting that the government’s affidavits wholly rebutted the assertions 
of retaliation. See Docket #2845.5 
5 The district court found the government’s affidavits wanting because they did not refute the 
allegation that, in the first week of October 2004, certain Interior employees refused to discuss trustrelated 
information with Indians. As the government explained, the employees were responding 
directly to the district court’s September 29, 2004 order that, in very broad terms, restricted Interior’s 
communications with class members. See Docket #2708, at 3 (second full paragraph prohibited all 
communications with members of the plaintiff class in the absence of a court-approved notice). The 
district court dismissed this explanation as pretext for willful retaliation, declaring that it was 
“offended that the individuals responsible for these acts would cite the Court's Orders as 
justification” for their acts of “utter depravity and moral turpitude.” 355 F. Supp. 2d at 541. 
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The district court states that “Interior cannot even determine which IIM account holders are 
members of the plaintiff class.” Op. 5. But as the order cited by the court makes clear, the reference 
is to the wholly unremarkable fact that Interior could not immediately identify for the court all of the 
class members who simultaneously possessed two different types of IIM accounts (accounts opened 
before 1997, when the class was certified, and accounts opened after that date). See May 28, 2004 
Mem. & Order, at 2-3 (Docket #2587). 
To the extent that the district court discusses trust records at all, it is to reiterate the old and 
untested accusations of former Special Master Balaran, who resigned three days before this Court 
was to hear oral argument on the government’s mandamus petition to disqualify him for bias. See 
No. 03-5288. The observation that in amassing and storing 300-500 million pages of paper records 
in multiple storage facilities throughout the country, Interior would occasionally encounter roof 
leaks, mouse droppings, and mold, is unsurprising. Nor would such incidents furnish any basis for 
a sweeping determination about the reliability of each one of several hundred thousand individual 
accounts. 
Mr. Balaran’s various accusations of intentional misconduct could scarcely be treated as 
“evidence” of any sort, much less as evidence that all trust-related information supplied by Interior 
is of “questionable reliability.” Like Master-Monitor Kieffer, Mr. Balaran assumed a “quasiinquisitorial, 
quasi-prosecutorial role that is unknown to our adversarial legal system.” 334 F.3d at 
1142. See, e.g., Site Visit Report of the Special Master to the Dallas, Texas Office of the Minerals 
Revenue Management Division of the Department of the Interior's Minerals Management Service 
(Sept. 29, 2003), at 1 (Docket #2311) (asserting “the authority of institutional reform special masters 
to uncover facts and collect evidence via ex parte contacts with parties and counsel”) (quotation 
marks omitted); Interim Report of the Special Master Regarding the Filing of Interior’s Eighth 
Quarterly Report, at 1 n.1 (April 21, 2003) (Docket #1999) (explaining that report was based on 
information “obtained outside of normal channels and to which the parties may have no familiarity”). 
The government sought Mr. Balaran’s disqualification after learning from his billing records that he 
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had secretly hired a complaining witness (and former officer of an interested corporation involved 
in a contract dispute) to assist him in his investigation of that witness’s own charges of government 
misconduct. This Court recently ordered full briefing on the mandamus petition, which was held in 
abeyance after Mr. Balaran’s resignation, and set oral argument for October 14, 2005. See No. 03- 
5288. 
With respect to electronic records, although the district court notes the ongoing evidentiary 
proceeding on plaintiffs’ charge that Interior’s electronic data is “at risk of corruption,” Op. 7, the 
court does not suggest that that proceeding (now in its 57th day of testimony and set to conclude on 
Friday of this week) could provide a basis for the July 12 order. This Court vacated the district 
court’s earlier injunction requiring Interior to disconnect its computer systems from the Internet, 
explaining (among other things) that the court had not held any evidentiary hearing. See Cobell v. 
Norton, 391 F.3d 251, 261-62 (D.C. Cir. 2004). 
The district court’s assertion that Interior “concedes” the “inherent unreliability” of all of its 
trust-related information (Op. 21) is inexplicable. The district court’s “evidence” of the 
“questionable reliability” of Interior’s trust-related information is thus reduced to a set of rhetorical 
questions: “If Interior cannot even ascertain the number of existing IIM account holders, how can 
any of its more complicated calculations, such as land appraisals, be trusted? If Interior is willing 
to deceive this Court, why would anyone think that Interior would hesitate to lie to the Indians?” 
Ibid. 
As we have shown here and in our structural injunction briefs, the assertions have no factual 
predicate. Indeed, to the extent that there is evidence touching upon the reliability of Interior’s trust 
information, it suggests that the account balances and underlying transaction histories are more 
accurate, and the agency records more comprehensive, than some had believed at the time of this 
Court’s original decision. In a study performed pursuant to a special $20 million appropriation, 
Ernst & Young examined the accounts of the named plaintiffs and their agreed-upon predecessors 
(a total of 25 persons and 37 IIM accounts). Ernst & Young analyzed 12,617 transactions in the 
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period from 1914 to 2000, finding contemporaneous evidence of 86% of the transactions 
representing 93% of the total dollar amount. Expert Report of Joseph R. Rosenbaum at 2, 5 
(3/28/03) (Phase 1.5 Tr., Def. Ex. 156). With a single exception, Ernst & Young found “no evidence 
of transactions that were not recorded in the available IIM account ledgers.” Id. at 2. The one 
exception was a credit of $60.94 that was incorrectly credited to an account with a similar account 
number. See ibid. Plaintiffs’ three-day examination of the report’s author during the Phase 1.5 trial 
produced no evidence to the contrary. See Tr., June 9-11, 2003; see also Pl. Ex. 36 (Plaintiffs’ 
The July 12 Order Is Subject To Immediate Appeal. 
Expert Report (Rebuttal)). Since that time, Interior has continued to proceed with reconciling tens 
of thousands of accounts involving tens of millions of dollars. 
III. 
The July 12 order is subject to immediate appeal. First, it is an injunction and thus 
appealable under 28 U.S.C. 1292(a). See Avery v. Sec’y of Health and Human Services, 762 F.2d 
158, 160-61 (1st Cir. 1985) (Breyer, J.). The order “compel[s] affirmative agency conduct,” imposes 
a significant “burden on the Secretary,” and is “enforceable by contempt sanctions.” Id. at 160 
(citing 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure: 
Jurisdiction § 3922 (1977)). On its face, it is “not purely ‘a matter of [litigation] procedure’” but 
reflects a substantive determination and orders substantive relief. See id. at 160-61. By the district 
court’ s own admission, the order is designed to address primary conduct concerning how money is 
spent. 
The harm, as should be clear, could not be undone on appeal from final judgment, see id. at 
161, which the district court does not intend to issue at any point in the foreseeable future. See 
2/23/05 Mem. Op. 14 (retaining jurisdiction until March 27, 2011); 226 F. Supp. 2d at 161 
(suggesting that the litigation will require the full extent of the district court’s life tenure). 
Meanwhile, the July 12 order would poison the relationship between Interior and the trust 
beneficiaries that it is charged with serving, with the stated goal of dissuading trust beneficiaries 
from engaging in any trust-related transactions for the indefinite future. “In sum, both as a matter 
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of form and in terms of the purposes of section 1292(a),” it is “proper in the context of this litigation 
to treat the ‘notice’ ... order[] as injunctive relief that is appealable on an interlocutory basis.” Avery, 
762 F.2d at 161 (citing Wright & Miller, §§ 3920-24); see also Great Rivers Cooperative v. 
Farmland Industries, Inc., 59 F.3d 764, 766 (8th Cir. 1995) (order directing the defendant 
cooperative to print in its newsletter a statement from the plaintiff members regarding the litigation 
was an appealable injunction). 
Second, the July 12 order is a final order subject to immediate review under the collateral 
order doctrine. See, e.g., Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171-77 (1974) (holding that 
an order allocating 90% of the costs of a class notice to the defendants was appealable under the 
collateral order doctrine and proceeding to review the notice requirement on the merits); In re School 
Asbestos Litig., 842 F.2d 671, 677-79 (3d Cir. 1988) (order requiring an association of asbestos 
manufacturers to disclose in communications with class members its relationship to the defendants 
was reviewable under the collateral order doctrine). 
If the Court nonetheless has doubts about its appellate jurisdiction, we respectfully ask that 
the Court treat the appeal and motion for stay as a petition for writ of mandamus. See Cobell, 334 
F.3d at 1140 n.* (citing Ukiah Adventist Hosp. v. FTC, 981 F.2d 543, 548 n.6 (D.C. Cir. 1992)). 
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CONCLUSION 
The district court’s July 12, 2005 order should be stayed pending the September 16, 2005 oral 
argument on the structural injunction appeal and further order of this Court. 
Respectfully submitted, 
PETER D. KEISLER 
Assistant Attorney General 
KENNETH L. WAINSTEIN 
United States Attorney 
GREGORY G. KATSAS 
Deputy Assistant Attorney General 
ROBERT E. KOPP 
MARK B. STERN 
THOMAS M. BONDY 
ALISA B. KLEIN 
MARK R. FREEMAN 
I. GLENN COHEN 
(202) 514-5089 
Attorneys, Appellate Staff 
Civil Division, Room, 7531 
Department of Justice 
950 Pennsylvania Ave., N.W. 
Washington, D.C. 20530 
JULY 2005 
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