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 Courts 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 Courts 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 Interiors 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 governments 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 Interiors 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 courts jurisdiction and this Courts 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 governments 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