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Cobell v. Norton

October 19, 2001

ELOISE PEPION COBELL ET AL. PLAINTIFFS
v.
GALE A. NORTON SECRETARY OF THE INTERIOR, ET AL. DEFENDANTS



SUPPLEMENTAL REPORT AMENDING THE SECOND AND FOURTH REPORTS OF THE COURT MONITOR

I. INTRODUCTION

On August 9, 2001, the Court Monitor submitted the Second Report of the Court Monitor (Second Report) to this Court. On October 16, 2001, the Fourth Report of the Court Monitor (Fourth Report) was submitted to this Court. While the substance of the Second Report dealt with TAAMS development and deployment and that of the Fourth Report dealt with BIA Data Cleanup, both Reports also addressed the preparation, review, and verification process carried out by the Interior defendants for the submission to this Court of each of the seven Quarterly Reports.

Specifically, the Second Report discussed the Special Trustee's addition of the Special Trustee Observations section to the Third and subsequent Quarterly Reports following his assuming his position in the summer of 2000. It reviewed the negotiations over his draft statements of his concerns about the accuracy and completeness of the substance of those Quarterly Reports and how these statements were modified prior to his verification of the Quarterly Reports (see generally, Second Report at pages 85 to 94).

He had stated to the Court Monitor that he had stopped providing his verification as subsequently reported in the Second Report:

"He confirmed that he had stopped the practice of "verifying" the Quarterly Reports in his transmittal letters to the DOJ. They had requested that he verify the Quarterly Reports. However, his staff and he were of the opinion that there was too much that they could not confirm the accuracy of in the BIA reports on the subprojects to be able to verify them in the legal sense of the word." Id. at 104. *fn1

The Court Monitor commented in the Second Report's Conclusions and Discussion section on the Special Trustee's difficulty in placing his comments in the Special Trustee Observations as he or his staff had prepared them by stating:

"The Quarterly Reports have been misleading regarding the true status of the TAAMS project. No adequate description was ever given this Court of the failure by TAAMS to pass the user acceptance and IV&V tests. Every effort has been made to show progress and positive events and suppress negative results when in actuality the system was repeatedly failing in major areas that clearly would set back trust reform by many months if not years.

Only when a new Special Trustee was appointed did any semblance of a true picture of the status of TAAMS begin to be reflected in the Quarterly Reports. However, the opposition of senior DOI and BIA officials, to include attorneys, to the substance of his reports heavily influenced his published Observations. That criticism and opposition as well at the presentation of false and misleading information to the Court continue to the present." Id. at 124.

In the Fourth Report, the Court Monitor addressed the Special Trustee's refusal to verify the Seventh Quarterly Report and submitted as an exhibit the memorandum of his subordinate's confirmation to the Solicitor of the Special Trustee's position on that refusal that stated in part:

"This is to recap and confirm our conversations of 8/31/01. I expressed the Special Trustee's opposition to the proposed motion to extend the filing deadline for the quarterly report based on the Special Trustee verifying the contents of that report. As I stated in a voice mail message and directly to you with Mike Smith present, the Special Trustee would not verify the report under any conceivable scenario encompassed by the proposed motion. As you are aware, I repeated this to the Solicitor when we met him later in the afternoon." Id. at 4 and Tab 7.

At the time of submission of the Fourth Report on October 16, 2001, the Special Trustee provided to the Court Monitor a memorandum with attachments regarding his cessation of the practice of verifying the Quarterly Reports to more fully explain his reasoning in light of the comments made by the Court Monitor in the Second and Fourth Reports about that change of procedure.

Due to the substance of the memorandum and attachments, it is necessary to supplement the factual presentations made in both of the previous Reports by addressing the Special Trustee's proffer in this Supplemental Report.

II. THE SPECIAL TRUSTEE'S MEMORANDUM AND ATTACHMENTS

The memorandum and attachment are provided as an attachment to this Report. The Court Monitor has paginated the document for ease of referral.

A. The Special Trustee's Understanding of the Significance of Verification of the Quarterly Reports

In his memorandum to the Court Monitor, the Special Trustee discusses his reasoning for submitting it to the Court Monitor and first addresses his decision to discontinue verifying the Quarterly Reports:

"The recent reports that you have authored and submitted to Judge Lamberth concerning the progress of trust reform within the Department have commented on the objectivity and, therefore, the usefulness of the Department's Quarterly Reports which have been submitted to the Judge. My Office became responsible for gathering the information that went into those Reports with Report Number 3. As had been the prior practice, I was asked to verify the Report. I complied with that request. As I became more aware of the possible interpretations of my act of verification, I ceased the practice." Id. at 1, emphasis added.

His Memorandum to File also addresses his reasoning by stating:

"To the best of my knowledge the word "verify" as used in the transmittal to DOJ and signed by me, was part of language recommended, in fact by DOJ. As I recall the DOJ messages were relayed through SOL.

Based on my understanding of what DOJ wanted, I believed the use of the word "verify" in these circumstances indicated my belief that our sources of information for the subprojects were reliable.

I dropped the use of the word "verify" in the transmittal letter after the filing of the Fifth Quarterly Report because I was informed by staff that the word could be interpreted more broadly, viz., to determine or prove the truth, accuracy, and completeness of the information in the Report.

A reading of the Special Trustee's Observations beginning with the Third Report (my first Report) will indicate a growing concern with the Report's completeness, especially regarding BIA data cleanup. In the Seventh Report my Observations clearly reflect a lack of confidence in the completeness of the Report." Id. at 2, emphasis added.

While the Special Trustee's memoranda do not add to the picture of the verification process and the reasons for his discontinuing his verification of the Sixth and Seventh Quarterly Reports previously addressed in the Court Monitor's Second and Fourth Report based on interviews with him and his subordinates, confirmation of his memory is supplied by the attachments which also provide ...


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