IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, gt al., Plaintiffs, V. GALE A. NORTON, Secretary of the Interioj), gtal., Defendants. 1 1 1 1 1 1 1 ) 1 1 I Case No. 1:96CV01285 (Judge Lamberth) REPLY TO PLAINTIFFS' OPPOSITION TO INTERIOR DEFENDrlNTS' MYD BERT T. EDU'i\RDS' MOTION FOR ENLARGEMENT OF TIME TO RESPOND TO PLAINTIFFS' MOTION FOR ORDER TO SHOW CAUSE WHY INTERIOR DEFENDANTS AND BERT T. EDWARDS, EXECUTIVE DIRECTOR -OFFICE OF HISTORICAL TRUST ACCOUNTING, SHOULD NOT BE HELD IN CIVIL AND CRIMINAL CONTEMPT Plaintiffs make no showing why the Court should not grant Interior Defendants' motion for enlargement. Interior Defendants have demonstrated good cause for the request, and the request was for a reasonable enlargement of 15 days.' Accordingly, Interior Defendants' motion should be granted. .- 1. As noted in the motion for enlargement, govement counsel, who represent Edwards in his official capacity, needed to meet with Mr. Edwards in order to be in a position to address plaintiffs' charges, particularly those involving the false allegation that Mr. Edwards "is not a 'As noted in the "Further Notice of Errata" filed by the government on March 11, 2003, the enlargement period from the original due date to March 27, 2003, as set forth in the joint motion for enlargement was erroneously computed to be 14 days due to a misreading of plaintiffs' fax timestamp (which was expressed in Greenwich Mean Time). By the Further Notice of Errata, the governnient corrected the enlargement period requested to 15 days. Ex. 1. I Certified Public Accountant. . . .I' See Plaint$@ 'Motionfoip Order to Show Cause Why Interior Defendants and Bert T. Edwards, Executive Director -OfJice of Historical Trust Accounting, Should Not Be Held in Civil and Criminal Contemptfor Lying Under Oath Regarding the Nature and Scope of the Historical Accounting ("Plaintiffs' Motion") at 16-17. Further, private counsel requested to be present during government counsel's interview of Mr. Edwards, but were unavailable for several days due to previously-scheduled business travel and the desire to meet with Mr. Edwards themselves before government counsel interviewed him. Plaintiffs have not dernonstratcd that this basis for the requested enlargement was unreasonable in the circumstances, given the serious sanctions they seek to impose upon Interior Defendants and Mr. Edwards. Tn the interests of due process, the Court should grant Interior Defendants' motion for enlargement. 2. Plaintiffs have not demonstrated that they would suffer any prejudice from the Court's granting the motion for enlargement sought by Interior Defendants. It is unclear whether plaintiffs challenge the request by Mr. Edwards' personal counsel for enlargement to March 27, 2003. Counsel for Mr. Edwards explained in the March 7, 2003 joint motion for enlargement that they had only recently been retained to represent Mr. Edwards. Plaintiffs offer no reason why Mr. Edwards' private counsel should not be allowed a reasonable opportunity to review documents and meet with their client in order to prepare an appropriate response to Plaintiffs' Motion. Plaintiffs offer no basis for denying Mr. Edwards the right to consult with his counsel in the face of their charges of criminal and civil contempt. Interior Defendants sought no greater enlarge~iientthan that sought by Mr. Edwards in his personal capacity. Moreo\?er,there is nothing precluding plaintiffs from raising the substance of the allegations in their motion in the course of Trial 1.5 through -2- s - competing documentary evidence, testimony and/or cross-examination, if the Court finds such inquiry relevant. 3. Consistent with their request for enlargement, Interior Defendants and Mr. Edwards filed their oppositions to Plaintiffs' Motion on March 27, 2003.2 Plaintiffs' reply is now due on April 7,2003, more than three weeks before Trial 1.5 is scheduled to begin. Accordingly, the requested 15-day enlargement has no impact on the Court's trial schedule. For the reasons stated above, and in Interior Defendants' and Mr. Edwards' Motion for Enlargement, Interior Defendants request that the Court grant an enlargement of 15 days, to and including March 27,2003, and accept Interior Defendants' opposition to Plaintiffs' Motion filed on that date. Respectfully submitted, ROBERT D. McCALLUM, JR. Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN MICHAEL F. HERTZ Directors %terior Defendants' opposition was filed on March 27,2003 at approximately 11:33 pm. The District Court's time stamp machine incorrectly reflected a filing date and time of March 28,2003 at 12:33 pm. However, the opposition was re-stamped with the Court of Appeals' machine, which reflected the correct date and time. Ex. 2. -3- c .- Deputy Jhfector I D.C. Bar No. 261495 Dodge Wells Senior Trial Counsel D.C. Bar No. 425 194 Tracy L. Hilmer D.C. Bar No. 421219 Trial Attorney p,---T------,,l T ;+;m04;-,, D,, .--.A&.dA-:--. ‘152LL1J.1 ._-.sx> Civil Division P.O. Box 261 Ben Franklin Station Washington, D.C. 20044 Tel: (202) 307-0474 -4- FOR 'THE DISTRTCT OF COLUMBIA ELOUISE PEPION COBELL, gt&, Plain tiffs, v. G.4LE A. NORTON, Secretary of the Tnterior, gA, L>e!'endar,ts. 1 1 1 ) ) I IaR I I 3 45 P# 'fig Case No. 1 :36CVO1285 (Judge Laniberth) FURTHER h'O?'lCE OF ERRATA On March 7, 2003, [he SeCJdXJ!of the Interior and Assistant Secretary -Indian Affairs ("Interior Defendants") and Bert T. Edwards filed htel-ior Dtfend(iiihfutid Bert T. Edwards'hfootion Sliould Not 3e Hdd in Civil and Criminal Contempt and a Memorandum ofrointsand .4uthorities in support of'such motion, and a Motion for Expedited Consideration of that Motion. In those filinzs lnterior Defendants and Mr. Edwards stated that their responses are currently due on March 13,2003 -s and requested a fourteen-day enlargement of thal date to March 27,2003. Further review of the plaintiffs' certificate of sersice, which shows the date and time Plaintiffs;'Motion was faxed to govenunent counsel (expresscd in Greenwich Mean Time) as "2003-02-27 002954 (GMT)" (Attachment A hereto), indicates that plaintiffs in fact served their niolion on February 26,2003, just beforc 7:30 pm local time, and that Interior Defendants' and Mr. Edwards' rcsponscs arc due on hlarch 12.2003, not March 13,2003. The Notice of Errata filed on March 10, 2003 also contains the same error. EXHIBIT 1 Reply to Pltfs' Opp to Defs' & Bert Edivards' Elng of Time Accordingly, Tntenor Defendants and Mr. Edwards furlher correct their fiJings to reflect that they seek a 15-dayeiilargen~entto March 27,2003, rather than a 14-day enlargement as previously stated. Respectfully submitted, ROBERT D. McCALLUM, JR. Assistant Attomcy General STUART E. SCHTFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN MICWL F. HERTZ V Deputy Director D.C. Bar Nu. 261395 Dodge Wells Senior Trial Counsel D.C. Bar No. 425191 Tracy L. Hiliner D.C. Bar No. 421219 Trial Attorney Coniiiiercial Litigation Branch Civil Division P.O. Box 261 Ben Franklin Station Washington, D.C. 20044 (202) 307-0474 -2- ID:Page 21 of ID1 200302-27 OR2954 (GMIi 12025182372 From GroArq Rmpel T hercbycerti% tht a copy of the foregoing hA!NTIFFS' MOTION FOR ORDER TO htarkNqlc Unilcd Skites Alforne)rs Of?ice 555 Fourth Street, N.W. W~lllIgtoIl.D.C. 20001 202.314 8780 24 Attachment A I­ CBRTFTCATE OF SERVICE T declare wider penalty of perjury that, on March t I, 2003, I served the foregoing Further Noticc of Errata by facsimile, in accordance with their written request of October 3 1,2001 upon: Keith Harper, Esq. Native hnei-ican Rights Fund 1712 N Street, NW Washington, DC 20036-2976 202-822-0065 and by U.S. Mail upon: Elliott LcvitiIs, Esq. 1 100 Peachtree Street, Suite 2800 Atlanta, (3.410309-4530 and by U.S. Mail and by facsimile upon: Bnicc A. Uaird, Esq. h1ich:iel S.Imbroscio, Esq. Nicole J. Moss Covington & Burling 1201 Pennsylvania 4ve., W P.O. BOX7566 Washington, D.C. 20043-7566 202-662-6291 AIan L. Balar,u. Esq. Special Mastcr 17 1 7 Pennsylvania Ave., NW 13th Floor Washington, DC 20006 202-386-8477 Dermis M Gingold, Esq. Mark Brown, Esq. 1275 Pennsylvania Avenue, NW Ninth Floor Washington, DC 20004 202-3 18-2372 and by facsimile upon: Joseph S. Kicffer, TII,Esq. Special Master-Monitor 420 7th Street, NW Apt 705 Washington, DC20004 202-478-195 8 03/11/2053 15:36 1;A.X 2023050097 COBELL-MATN @JOOL I TWRX KO rxs . TX/HX TNCOMPLL:?'L; TRANSACTION OK ERROR INFORllA'l'l ON . 0895 6 ____ [ 57199868477 BAI.AMN r ~.8193182372 CIKGOLD [ 59198220068 HARPER I 60194781958 K I EFFER (1) YLiti26291 _____ JXPORTANT: ?'his facsimile is intended only for th~ me of the individual or cntity to which it is addressed, It my co~itaindomarion that is privileged, confidential, or ohhcrwisc prortcted from disclovurt under applicable law. If the reader ofthis uansmission is not the intcndcd rtcipien1 or the employee or ngenr responsiblefor delivering the tmnsnhion to the intended recipienq you arc hcrcby norified that MY dissemination, diskibunoo, copying or use of this mnsmission or it's coxlteu7rs is strictly prohibited. lfyou have received this msnksion in error, please notify US by telephoning aud return the wigid trmrmisuion to us at the address givrn below. FROM: DcpTarunetlt of Justice Civil Division Fax No. (202) 353-3565 Voice No, (202) 616-9663 SEhT BY: Kevin Uigstou Labat-Anderson To: Allan Balaran Keith Harper Dennis M.Gingold Joseph S.Iilieffer, III FAX No-(202) 986-8477 (202) 822-006s (202) 318-2372 (202) 178-1958 Bmce A. Eaird Michael X. Imbroscio Nicole J. Moss Covington & Burling 662-6291 KUMBER OF PAGES SENT (INCLUDING COVER PAGE): 6 i I 1-@ELOUISE PEPION COBELL, et al., . .' II ' _Ir____ ~ . .-.-.--r * -) Plaintiffs, 1 Civil Action No. V. GALE A. NORTON, et al.,.'> Defendants. 1 1 1 1 1 1 1 INTERIOR DEFENDANTS' OPPOSITION TO PLAINTIFFS' RlOTlON FOR ORDER TO SHOW CAUSE WHY INTERIOR DEFENDANTS AND BERT T. EDWARDS, EXECUTIVE DIRECTOR -OFFICE l0f-j HISTORICAL TRUST ACCOUNTING, SHOULD NOT BE HELD IN CIVIL AND CRIMINAL CONTEMPT This brief is submitted on behalf of the Secretary of the Interior and the Assistant Secretary -Indian Affairs ("Interior Defendants") and Bert T. Edwards in his official capacity in opposition to Plaintzfls'Motion for Order to Show Cause Why Interior Defendants and Bert T.Edwards, .-Executive Director -Ofice [oj Historical Trust Accounting Should Not Be Held in Civil and Criminal Contemptfor Lying Under Oath Regarding the Nature and Scope of the Historical Accounting (served Feb. 26, 2003) ("Plaintiffs' Motion").' With this motion, plaintiffs have now 'Government counsel and private counsel for Mr. Edwards filed a motion for enlargement of time to and including March 27, 2003 in which to file their oppositions to Plaintiffs' Motion. Interior Defendants ' and Bert T. Edwards' Motionfor Enlargement of Time to Respond to Phint@s ' 5 CE Motionfor Order to Show Cause Why Interior Defendants and Bert T. Edwards, Executive EL Director -Oflce of Historical Trust Accounting, Should Not be Held in Civilpnd Criminal -5" 4 F L2 Contempt (filed Mar. 7,2003);see also Notice of Errata (filed Mar. 10, 2003); Further Notice of 5 65 Errata (filed Mar. 11,2003). Also on March 7,2003, Government counsel and Mr. Edwards' private @ g-g counsel filed a motion for expedited review. On March 20, 2003, plaintiffs opposed the motion for W 'iii8 enlargement. Government counsel and Mr. Edwards' reply is due on March 31,2003. The Court has g-!3+ (continued...) CERTIFICATE OF SERVICE I declare under penalty of perjury that, on March 31,2003 I served the foregoing Reply to Pluintgs ' Opposition to Interior Defendants ' and Bert T. Edwards' Motiorifor Enlai-gement of Time to Respond to Plaint@i' Motion for Order to Show Cause why Interior Defendants and Bert T, Edwai-ds, Executive Director -OfJice of Historical Trust Accounting, Should Not Be Held in Civil and Criminal Contempt by facsimile, in accordance with their written request of October 31,2001 upon: Keith Harper, Esq. Native American Rights Fund 1712 N Street, NW Washington, DC 20036-2976 (202) 822-0068 and by facsimile upon: Michael X. hbroscio, Esq. Bruce Baird, Esq. Nicole Moss, Esq. Covington & Burling 1201 Pennsylvania Avenue, NW Washington, DC 20004 (202) 662-6291 and by U.S. Mail and by facsimile upon: Alan L. Balaran, Esq. Special Master 1717 Peimsylvania Ave., NW 13th Floor Washington, DC 20006 (202) 986-8477 and by hand upon: Joseph S. Kieffer, 111, Esq. Special Master-Monitor 420 7th Street, NW Apt 705 Washington, DC 20004 Dennis M Gingold, Esq. Mark Brown, Esq. 1275 Pennsylvania Avenue, NW Ninth Floor Washington, DC 20004 (202) 3 !Y..yJ'!Z and by U.S. Mail upon: Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 .- Sean P. Schniergel