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IN THE UNITED STATES DISTRICT COURd~ 
ELOUISE PEPION COBELL, gj al., ) 
1 
Plaintiffs, 
1 
V. ) Case No. 1:96CV01285 
) (Judge Lamberth) 
GALE A. NORTON, Secretary of the Tnterior, g al., ) 
Defendants. ) 
INTERIOR DEFENDANTS MOTION LIMINE TO EXCLUDE 
PLAINTIFFS PLAN FOR DETERMINING ACCURATE BALANCES IN THE 
INDIVIDUAL INDIAN TRUST AND ALL EVIDENCE OFFERED IN SUPPORT 
Pursuant to Rule 104(a) of the Federal Rules of Evidence, Rule 7(b) of the Federal Rules 
of Civil Procedure, and Local Rule 7.1, Interior Defendants respectfully move this Court for an 
Order in limine excluding Plaintiffs Plan for Determining Accurate Balances in the Individual 
Indian Trust (filed January 6, 2003) (Plaintiffs Plan), and all evidence offered in support of 
Plaintiffs Plan. Lnterior Defendants seek an order in limine for the reasons set forth below 
I. PLAINTIFFS PLAN IS NOT RELEVANT TO ANY JUSTICIABLE 
CLAIM 
Plaintiffs do not mince words in their Plan: [Tlhe accounting owed by the United States 
government and ordered by this Court is impossible. Plaintiffs Plan at 3. With this principle of 
impossibility as its central premise,2 Plaintiffs Plan provides an alternative to the accounting 
1 On April 18,2003, Interior Defendants counsel left a message for Plaintiffs 
counsel asking to confer regarding this motion, pursuant to Local Rule 7.1(m). Not having 
received a reply, it is believed that Plaintiffs will oppose this motion. 
2 Interior Defendants dispute Plaintiffs notion that an accounting is impossible. As 
discussed in Section IIIbelow, since impossibility is also not a justiciable claim, any evidence 
offered for the purpose of demonstrating impossibility should also be excluded. This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
required by the American Indian Trust Fund Management Reform Act of 1994 (,'1994 Act") and 
ordered by this Court3 As even a cursory review makes plain, Plaintiffs' Plan is actually a 
methodology for calculating damages. Moreover, it is not -by Plaintiffs' admission - a plan for 
conducting the accounting required under the 1994 Act and, thus, does not comply with the 
Court's Order of September 17,2002, authorizing Plaintiffs to file their own plan for conducting 
the historical accounting. 
Under Fed. R. Evid. 401, relevant evidence is defined as "evidence having any tendency 
to make the existence of any fact that is of consequence to the determination of the action more 
probable or less probable than it would be without the evidence." Because Plaintiffs' Plan does 
not comply with the Court's September 17,2002 Order and does not relate to any cognizable 
claim in this action, it is irrelevant and should be excluded. 
A. Plaintiffs' Plan Is A Methodolow for Calculatin- 
On January 6,2003, Plaintiffs submitted Plaintiffs' Plan for the Court's consideration. 
The bulk of Plaintiffs' submission is devoted to its argument that the Interior Department cannot 
produce an accounting that satisfies its trust obligations, and Plaintiffs ultimately propose a 
damages calculation based upon various methodologies for "quantifjfing] the monies generated 
from individual Indian trust lands.'' Plaintiffs' Plan at 39-55; see Plaintiffs' Plan, Ex. 42 (excerpt 
from "Measuring Commercial Damages" treatise); Plaintiffs' Plan, Ex. 43 (excerpt from 
"Recovery of Damages for Lost Profits" treatise). 
3 For example, this Court has found that "[alny accounting of funds necessarily 
involves examining past transactions and events that could effect the current balance." Cobell v. 
Norton, 226 F. Supp. 2d 1, 1 16 n. 135 (D.D.C. 2002). Plaintiffs' Plan does not even attempt to 
meet this standard. 
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1. Plaintiffs Expresslv Assert That An AccountinP Cannot Be Performed 
Section II of Plaintiffs' Plan is captioned "Infeasibility of a Complete and Accurate 
Historical Accounting." Plaintiffs' Plan at 7. Plaintiffs' Plan continues with the following 
unqualified pronouncement: 
It is simply not possible to provide to individual Indian trust 
beneficiaries a complete and accurate historical accounting of their 
trust assets even if the Interior defendants, in good faith, had 
attempt [sic] to do so. 
Plaintiffs contend that an accounting cannot be performed because the data necessary to 
perforni an accounting has been "adulterated," "misappropriated," and "subject to fraud." 
Plaintiffs' Plan at 8-15. For example, Plaintiffs argue that 
[Ulntil the Interior Department's systems were shut down by this 
court on December 5,2001 pursuant to plaintiffs' motion for a 
temporary restraining order, 24 hours a day, 7 days a week, 52 
weeks a year - for more than a decade - all Trust data and billions 
of dollars of Trust fimds were subjected to unlawful manipulation 
and misappropriation by anyone with access to the Internet 
anywhere in the world with no ability to prevent or detect, or assess 
and reconstruct, the nature and scope of unlawful transactions or 
the adulteration of Trust records. 
-Id. at 9-10. Plaintiffs' Plan also contends that their funds have been misappropriated for over 
fifty years. &,id.at 10-11 (citing 1951 document allegedly supportive of misappropriation 
claim). Plaintiffs' Plan further seeks damages for alleged fraud, citing an alleged conspiracy 
"among 23 natural resources companies to underpay royalty obligations." Id.at 12-15 (referring 
to newspaper article from 1988). 
Plaintiffs' Plan continues by asserting that "[dluring the 1 I6 years of Trust management 
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and administration, the majority of source and related Trust documents have been destroyed." Id. 
at 16. Plaintiffs also support their allegations by relying upon a report prepared by a government 
consultant and statements made by, Special Master Balaran. Id.at 17-21. 
Finally, Plaintiffs refer the Court to statements of various government officials -the 
former Special Trustees for American Indians, General Accounting Office employees, 
independent accountants engaged by the government, members of Congress, and "defendants" - 
as confirmation of the premise underlying Plaintiffs' Plan, that t'an accounting is impossible." Id. 
at 21-38. 
2. Because Plaintiffs Allege That An Accountinp Cannot Be Performed, 
Plaintiffs Propose a Plan for EstimatinP Damages Owed bv the 
Government 
Plaintiffs' design to obtain a damages award is confirmed by a review of the proposal that 
follows their discussion of impossibility. See Plaintiffs' Plan at 39-55. Plaintiffs' damages 
proposal begins with the statement that it is designed to 
quantify the monies generated from individual Indian trust lands 
("Allotted Lands"). Due to overwhelming evidence of missing, 
unreliable, incomplete and misleading individual Indian trust data 
available from the trustee-delegate, Plaintiffs' Plan has sought to 
use other data sources in every instance possible. 
-Id. at 39 (parenthetical in original). Since Plaintiffs openly are using non-source documents to 
quantify allegedly "missing, unreliable, incomplete and misleading" data, their plan uses models 
-not source data -as a proxy for estimating the amounts that would be determined if an 
accounting were to be perf~rmed.~ 
4 In its 2001 opinion, the D.C. Circuit Court of Appeals was cognizant of Plaintiffs' 
allegations that underlying records for an accounting may be unavailable, but the appellate court 
- as did Congress in enacting the 1994 Act, with knowledge of many of the claims now asserted 
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After setting forth the bases for estimating total monies generated from the Allotted 
Lands,' Plaintiffs' Plan then suggests that the monies will be distributed among the class 
members, in some vague, as yet to be determined, manner. See Plaintiffs' Plan at 52. While 
Plaintiffs' Plan presents the concept of distributing money among class members - a routine 
process for a damages class action -it fails to describe any attempt to provide accountings for 
class members. Of course, since Plaintiffs have alleged that an accounting is impossible, it is not 
surprising that their Plan contains no accounting component. Rather, Plaintiffs concede that 
distributions to class members will not be based on accounting data because "[dlue to the 
inadequacy of the data, this process will prove to be a challenge." Id.at 52. 
by Plaintiffs - adhered to the concept of an accounting: 
The government's broad duty to provide a complete historical 
accounting to IlM beneficiaries necessarily imposes substantial 
subsidiary duties on those government officials with responsibility 
' for ensuring that an accounting can and will take place. In 
particular, it imposes obligations on those who administer the IIM 
trust lands and funds to, among other things, maintain and 
complete existing records, recover missing records where possible, 
and develop plans and procedures sufficient to ensure that all 
aspects of the accounting process are carried out. 
Cobell v. Norton, 240 F.3d 1081, 1105 (D.C. Cir. 2001). Plaintiffs' Plan seeks to calculate 
damages through models, instead, and in so doing, Plaintiffs notably disregard the direction of 
the appellate court, which described the government's duties to complete an accounting. 
Plaintiffs' decision simply reflects their election to pursue damages, rather than the equitable 
remedy of an accounting. 
5 Plaintiffs' Plan even goes so far as to concede that its model would not capture all 
forms of revenues from the Allotted Lands. Plaintiffs' Plan at 50-5 1. Thus, Plaintiffs' Plan 
includes a category of revenues captioned "Other" which the plan quantifies "as the difference 
between the Department of Interior's estimate of total monies generated from Allotted Lands as 
presented in the Department's July 2,2002 Report to Congress and Plaintiffs' quantification of 
monies generated fiom Allotted Lands . . . . I ' LId. at 51. 
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Plaintiffs complete their discussion by explaining the reliability of the proxies used to 
estimate monies generated by the Allotted Lands. Id.at 53-55. Tn so doing, Plaintiffs 
specifically rely upon excerpts from two damages treatises, Id.at 54-55 and Exhibits 42 and 43 
(citing and quoting from R. Dunn, Recovery of Darnapes for Lost Profits (5th ed. 1998), and P. 
Gaughan, Measuring Commercial Damages (2000)), as additional confirmation that Plaintiffs 
Plan is truly a damages model. 
Finally, Plaintiffs experts - retained to testifjr at the upcoming trial in support of their 
Plan -also confirm that the Plan is not intended to be an accounting. See, e.g., Richard E, 
Fasold Depo. Tr. at 93:2-11 (confirming that Plaintiffs Plan and methodology do not provide a 
complete and accurate historical accounting in and of itself ); 94: 14-24 (Fasolds methodology 
would need to be supplemented by additional steps taken by other people for it to produce an 
historical accounting) (attached as Exhibit 1). One of Plaintiffs retained experts even refers to 
Plaintiffs Plan as a damage model. Dwight J. Duncan Depo. Tr. at 290:21-291:17 
(summarizing discussion with Fasold) (attached as Exhibit 2). 
B. Plaintiffs Do Not Have A Damages Claim in this Action 
This Court previously considered whether it had subject matter jurisdiction over 
Plaintiffs claims and concluded that it did. Cobell v. Babbitt, 30 F. Supp. 2d 24 (D.D.C. 1998). 
In reaching this conclusion, the Court recognized the potential for confusion between Plaintiffs 
purported claims for equitable relief, i.e., for an accounting, and a damages claim (which would 
have been beyond this Courts subject matter jurisdiction): 
In determining whether the United States has consented to be sued 
in a federal district court in this case, the crucial issue becomes 
whether the plaintiffs requested retrospective remedy of an 
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accounting is an equitable, specific claim, or whether it is simply a 
money damages claim in disguise. Given the allegations contained 
in the Complaint and. importantly, certain representations of the 
plaintiffs counsel. the Court holds that the retrowective alle~ations 
of the Complaint seek solely an accounting. Thus, the plaintiffs do 
not seek money damages. 
-Id. at 39 (emphasis added).6 Later, this Court reiterated its conclusion that it possessed subject 
matter jurisdiction to entertain Plaintiffs claims. Cobell v. Babbitt, 91 F. Supp. 2d 1,24 (D.D.C. 
1999) (Plaintiffs have alleged various statutory violations, and, in substance, the focus of their 
claims is to enforce the statutory right to an accounting.), affd sub nom. Cobell v. Norton, 240 
F.3d 1081. This Court has thus conclusively determined that Plaintiffs do not have a damages 
claim in this action. 
C. Adoption of Plaintiffs PIan Would Divest this Court of Subject Matter 
Jurisdicition 
In its prior rulings, this Court made clear that it does not possess subject matter 
jurisdiction to entertain damages claims brought by Plaintiffs. See. e.g., 30 F. Supp. 2d at 39. 
Rather, as the Court is aware, through the Tucker Act, Congress expressly addressed subject 
matter jurisdiction as to damages claims: 
The United States Court of Federal Claims shall have jurisdiction 
to render judgment upon any claim against the United States 
founded either upon the Constitution, or any Act of Congress or 
any regulation of an executive department, or upon any express or 
implied contract with the United States, or for liquidated or 
unliquidated damages in cases not sounding in tort. 
6 Plaintiffs Plan is erroneously captioned Cobell v. Babbitt on the cover page. 
One can understandably infer from this that Plaintiffs have long intended to pursue a damages 
claim in this case, notwithstanding their prior representations, as referenced in the Courts 1998 
opinion. However, they have not moved to amend their complaint to include any such claim. 
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28 U.S.C. J 1491(a)(l) (2003).7 
Ordering Interior Defendants to follow the damages methodology in Plaintiffs Plan 
would be the equivalent of amending the Complaint to include a damages claim. This Court 
does not have jurisdiction to hear a damages claim. Adoption of Plaintiffs Plan would thus 
divest this Court ofjurisdiction and require transfer of the action to the Court of Federal Claims. 
Because Plaintiffs Plan is a model for damages calculation in a case without a damages 
claim - and before a Court with no jurisdiction to entertain one - Plaintiffs Plan is not related to 
any fact that is of consequence to the determination of the action, Fed. R. Evid. 401, as it 
currently stands or to any other justiciable claim in this action. 
11. PLAINTIFFS PLAN, AND ANY EVIDENCE IN SUPPORT, ARE 
INADMISSIBLE 
Under Fed. R. Evid. 402, [elvidence which is not relevant is not admissible. 
Because, as described above, Plaintiffs Plan is not relevant to any justiciable claim, it is 
inadmissible. For this Court to consider evidence in support of a Plan that cannot be adopted 
would be an unfortunate waste of judicial resources. Plaintiffs Plan, and any evidence offered in 
support, should be excluded. 
7 In limited circumstances, Congress has provided, through the Little Tucker Act, 
that federal district courts have original jurisdiction concurrent with the Court of Federal Claims 
over damages claims against the United States, provided the claims are not in excess of $10,000 
and are not brought pursuant to the Contract Disputes Act. 28 U.S.C. j1346(a)(2) (2003). To 
date, Plaintiffs have not asserted that they seek to rely upon the Little Tucker Act as a basis for 
federal district court jurisdiction. In the event Plaintiffs choose to amend their complaint to seek 
damages pursuant to the Little Tucker Act, such claims, of course, would be subject to the 
$10,000 statutory limit on damages claims. Such a change would also require proof that each 
member of the class qualifies for such jurisdictional treatment. 
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111. EVIDENCE SUBMITTED TO PROVE IMPOSSIBILITYIS INADMISSIBLE 
As discussed above, Plaintiffs Plan is premised on the alleged impossibility of 
conducting the accounting required under the 1994 Act. Impossibility of performance, however, 
is not a claim or defense that has been asserted in this case; it actually contradicts the relief 
sought in the Complaint. Any evidence offered to demonstrate impossibility would thus not be 
relevant to any claim or defense in this action and should also be excluded under Fed. R. Evid. 
402. 
CONCLUSION 
For these reasons, Interior Defendants Motion in limine should be granted. Plaintiffs 
Plan, and all evidence offered in support of the Plan, should be excluded. In addition, any 
8 Amending the Complaint to add a novel impossibility claim would also divest 
this Court of jurisdiction. The D.C. Circuit has indicated that this Courts jurisdiction over the 
action is based upon unreasonable delay of agency action under the Administrative Procedure 
Act, 5 U.S.C. 4 706. Cobell v. Norton, 240 F.3d at 1097. Interior Defendants obviously could 
not have unreasonably delayed conducting an accounting if such an accounting is impossible. 
Plaintiffs could try to assert a claim for damages against Interior Defendants for creating the 
conditions in which an accounting is impossible, but, again, such a claim is not within the 
jurisdiction of this Court. 
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evidence offered for the purpose of demonstrating the impossibility of conducting an accounting 
should be excluded. 
Dated: April 18,2003 Respecthlly submitted? 
ROBERT D. McCALLUM, JR. 
Acting Associate Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Deputy Director 
D.C. Bar No. 261495 
JOHN T. STEMPLEWTCZ 
Senior Trial Attorney 
PHILLIP M. SELIGMAN 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington D.C. 20044-0875 
(202) 5 14-7194 
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IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, al., 1 
) 
Plaintiffs, )
1 
V. ) Case No. 1:96CVO1285 
) (Judge Lamberth) 
al., ) GALE NORTON, Secretary of the Interior, gt 
1 
Defendants. 
This matter comes before the Court on Tnterior Defendants Motion In Limine To 
Exclude Plaintiffs Plan For Determining Accurate Balances In The Individual Indian Trust And 
All Evidence Offered Tn Support. Upon consideration of the Motion, the responses thereto, and 
the record in this case, it is hereby 
ORDERED that Interior Defendants Motion is GRANTED; 
ORDERED that Plaintiffs Plan For Determining Accurate Balances In The Individual 
Indian Trust will not be admitted into evidence at the Phase 1.5 trial; 
ORDERED that all evidence offered in support of Plaintiffs Plan For Determining 
Accurate Balances In The Individual Indian Trust will not be admitted at the Phase 1.5trial; 
ORDERED that all evidence offered for the purpose of proving that an accounting of the 
Individual Indian Money trust is impossible will not be admitted at the Phase 1.5 trial. This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
SO ORDERED. 
Date: 
ROYCE C. LAMBERTH 
United States District Judge 
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cc: 
Sandra P. Spooner 
John Stemplewicz 
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 
Alan L. Balaran, Esq. 
Special Master 
1717 Pennsylvania Avenue, N.W. 
13th Floor 
Washington, D.C. 20006 
(202) 986-8477 
Joseph S. Kieffer, III 
Special Master-Monitor 
420 - 71hStreet, N.W. 
Apartment 705 
Washington, D.C. 20004 
Earl Old Person (Prose) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530 This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
Richard E. FasoId March 21.2003 
Washington, D.C. 
Page 
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. 
-X 
: Case No. 
: 1:96CVO1285 
: (Judge Lamberth) 
: 
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L4 
15 
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-8 
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: O 
1 
2 
3 
4 
5 
Washington, D.C. 
Friday, March 21, 2003 
Deposition of RICHARD E. FASOLD, a 
Witness herein, called for examination by counsel 
f o r Defendants in the above-entitled matter, 
pursuant to notice, the witness being duly sworn 
by PAUL A . GASPAROTTI, a Notary Public in and for 
the State of Maryland, taken at the offices of 
U.S. Department of Justice, 1100 L Street, N.W., 
Washington, D . C . , at 9:35 a.m., Friday, March 21, 
2003, and the proceedings being taken down by 
Stenotype by PAUL A. GASPAROTTI, and transcribed 
under his direction, 
Exhibit 1 Alderson Reporting Company, Inc. Defs Motion I n Limie - Exclude 
1 1 I 1 14th Street, N.W. Suite 400 1-800-FOR-DEPOWashington, DC 20005 pltfs plan for A C C U ~ ~ ~ ~ I ~ R This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
Richard E. Fasold March 2 1 , 2003 
Washington, D.C. 
Page 9: 
on aggregate numbers, no. 
Q. Well, the methodology that you've 
described, does that provide individual Indian 
trust beneficiaries with a complete and accurate 
historical accounting? 
A . No. 
Q. Do you have an opinion as to whether 
the methodology described in Fasold Exhibit 1 
complies with the Court's requirement that a 
historical accounting be performed? 
A. Not in and of itself. 
Q. And can you explain what you mean by 
that? 
A. According to the plaintiffs' plan that 
I've read - - 
Q. And helped draft, right? 
A. And helped draft, and I will then go 
into a parenthetical to clear the record on your 
potential misconception. 
Q . Fair enough. 
A. I was informed that my draft, my ideas 
to go into that document were woefully inadequate 
and most of them weren't used. So when you say 1 
helped draft, a number of my suggestions were 
summarily rejected. 
Alderson Reporting Company, Inc. 
1 1 1 1 14th Street, N.W. Suite 400 I -800-FOR-DEPO Washington, DC 20005 This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
Richard E. Fasold March 21, 2003 
Washington, D.C. 
Page 2 
Q . But when we were going through 
plaintiffs' plan earlier this morning, you were 
ticking off a number of pages that included your 
suggestions, right? 
A. Right. 
Q. so you - - I'm sorry - - you were 
explaining your response to my question about 
whether your methodology would provide a 
historical accounting as required by the Court. 
A. Yeah. As described in the plaintiffs' 
plan, there are additional phase or phases to be 
completed after, I believe, a ruling in Trial 2, 
should the plaintiffs' plan be .adopted, that would 
provide individual Indians with balances. 
Q . And which additional steps are you 
referring to? 
A. It begins on page 52, and I'm looking 
at - -
Q . Oh, we're in the plaintiffs' plan? 
A. Plaintiffs' plan, yes. Page 52, and it 
follows under t h e paragraph I, distribution of 
restated accounts, and I can read it if you would 
like me to read it. 
Q . You can just tell me which section 
you're referring to. 
Alderson Reporting Company, Inc. 
1 1 1 1 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005 This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
Dwight J. Duncan March 25, 2003 
Washington, DC 
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. 
_ _ _ - - - - - - - _ _ _ 
-X 
: 
: 
: 
: 
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Case No. 
1:96CVO1285 
(Judge Lamberth) 
VOLUME I1 
Washington, D.C. 
Tuesday, March 25, 2003 
Continued Deposition of DWIGHT J. 
DUNCAN, a Witness herein, called for examination 
by counsel for Defendants in the above-entitled 
matter, pursuant to notice, the witness being duly 
sworn by PAUL A. GASPAROTTI, a Notary Public in 
and for the State of Maryland, taken at the 
offices of U . S . Department of Justice, 1 1 0 0 L 
Street, N.W., Washington, D.C., at 9:35 a.m., 
Friday, March 21, 2003, and the proceedings being 
taken down by Stenotype by PAUL A. GASPAROTTI, and 
transcribed under his direction. 
Alderson Reporting Company, Inc. Exhibit 2 
1 1 11 14th Street, N.W. Suite 400 1-800-FOR-DEPOWashgton, DC 20005 ~ ~ , ' ~ This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
Dwight J. Duncan March 25,2003 
Washington, DC 
Page 29 
should have been collected, not stepping back to 
question whether things have been negotiated in 
good faith at that level. 
Q. Do you know why you're not up at that 
level, by the way? 
A. I don't think there has been any 
effort, and this model doesn't incorporate what 
market negotiated contracts would be. 
Q. Have you formed any opinions regarding 
any weaknesses in the plaintiffs' plan? 
A. Mr. Fasold and I had several 
discussions about the actual implementation of the 
methodologies, but I would say that those 
discussions really went to the actual numerical 
calculations that are going to be provided in 
trial 2. 
Q. So there were no discussions about the 
weaknesses in the method? 
A. No, I think we had some discussion 
specifically about methodologies. 
Q. Would you summarize those discussions 
please? 
A. Well, we talked obviously about the 
methodologies and evaluating them relative to the 
! 5 relevance and reliability standards. Specifically 
AldersonReporting Company, Inc. 
1 1 11 14th Street, N.W. Suite 400 1-800-FOR-DEPOWashington, DC 20005 This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
Dwight J. Duncan March 25,2003 
Washington, DC 
Page 291 
I identified some areas in Mr. Fasold's plan where 
I thought that the number of data points available 
for certain of the variables that he was 
analyzing, it certainly would have been desirable 
to have more data points. There were some 
portions where there were no data points over 
three or four or five-year periods, and I probed 
Mr. Fasold as to whether or not there was any 
other source that could be used to try and fill in 
some of those gaps. 
We talked specifically about the 
estimate of aggregates, the methodology behind the 
estimate of aggregates, and it was my opinion that 
the estimate of aggregates was, the methodology 
behind it was a fairly weak methodology and that 
was something that Mr. Fasold ultimately, I 
believe, removed from the damage model as it now 
exists. 
Q - NOW, what methodology did he remove? 
A. The estimation of aggregates - - 
aggregates being compounds used in things used 
in making, like concrete. 
Q . Mr. Duncan, have you ever participated 
in a hearing, in a court hearing under Daubert or 
Kumho Tire? 
Alderson Reporting Company, Inc. 
1 1 1 1 14th Street, N.W. Suite 400 1-800-FOR-DEPOWashington, DC 20005 This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on April 18,2003 I served the foregoing Interior 
Defendants Motion In Limine to Exclude Plaintgfs Plan f o r Determining Accurate Balances in 
the Individual Indian Trust and All Evidence Offered in Support by facsimile in accordance with 
their written request of October 31,200 1 upon: 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
(202) 822-0068 
Per the Courts Order of April 17,2003 
By Facsimile upon: 
Earl Old Person (Prose) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530 
By facsimile and US. Mail upon: 
Alan L. Balaran, Esq. 
Special Master 
17 17 Pennsylvania Avenue, N.W 
13th Floor 
Washington, D.C. 20006 
(202) 986-8477 
By Hand upon: 
Joseph S. Kieffer, III 
Special Master Monitor 
420 7&Street, N.W. 
Apartment 705 
Washington, D.C. 20004 
(202) 478-1958 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
1275 Pennsylvania Avenue, N.W. 
Ninth Floor 
Washington, D.C. 20004 
(202) 318-2372 
By U.S. Mail upon: 
Elliott Levitas, Esq 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530