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Cobell v. Norton

September 17, 2002

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



The opinion of the court was delivered by: Royce C. Lamberth United States District Court

MEMORANDUM AND ORDER

This matter comes before the Court on defendants' Motion To Revoke The Appointment Of Joseph S. Kieffer, III, And To Clarify The Role And Authority Of A Court Monitor, filed June 14, 2002 ("Revocation Motion"). As the basis for the Revocation Motion, defendants claim the Court Monitor's activities in carrying out his duties pursuant to his authority under the appointment Order of this Court, dated April 16, 2001, and the reappointment Order, dated April 15, 2002, have "exceeded the constitutional and statutory limits of the Court's jurisdiction" and the authority delegated to him under those Orders. Id. at 1. Additionally, defendants claim that the Court Monitor has "demonstrated a lack of impartiality that requires his disqualification from further participation in this case." Id. Defendants also request that, if the Court determines that a continuing role for a court monitor is appropriate in this case, "the Court clarify the proper limits on the role and authority of any future court monitor ... and its previous orders regarding the role and authority of a court monitor to make them consistent with the constitutional and statutory limits on the Court's jurisdiction and to ensure in the future that the court monitor's activities will conform to these limits and to the proper role of a judicial officer." Id. at 1-2.

Upon consideration of the memoranda filed in support or and in opposition to the defendants' motion, the record in this case, and the applicable law, the Court finds that the motion should be denied.

I. BACKGROUND

A. The Court Monitor Appointment Order

On April 16, 2001, this Court, with the consent of the plaintiffs and defendants, appointed Mr. Kieffer as Court Monitor with the specific authority to "monitor and review all of the Interior defendants' trust reform activities and file written reports of his findings with the Court. These reports shall include a summary of the defendants' trust reform progress and any other matter Mr. Kieffer deems pertinent to trust reform." See Order filed April 16, 2001 at 2. Mr. Kieffer was also "permitted to make and receive ex parte communications with all entities necessary or proper to effectuate his duties." Id. Defendants were enjoined to "assist Mr. Kieffer in the execution of his duties and responsibilities..." and "provide Mr. Kieffer with access to any Interior offices or employees to gather information necessary or proper to fulfill his duties." Id.

This Court extended Mr. Kieffer's term of service as Court Monitor on April 15, 2002, pursuant to the Court's Order of April 16, 2001. See Order filed April 15, 2002.

B. Government Counsel's Consent to the Order As A Means To Lessen Litigation

The Court placed on the public record the meetings that it had held with the parties about the Court Monitor's appointment and their consent to it on April 16, 2001, in open court. Counsel for defendants responded to the Order by stating: "Mr. Brooks: Your Honor, the government wants to put on the record that it consents to this order and appreciates the court's time and attention to this, and we hope that this will in fact be a positive step forward so that resources can be more directed towards trust reform and less directed towards litigation. And perhaps this will be a positive step between the parties as well. Thank you, Your Honor." See Transcript of Status Hearing, April 16, 2001, at 5.

C. The Secretary's Endorsement of The Court Monitor's Authority and Establishment of a Dialogue With Her Key Subordinates

The Court Monitor met with the Secretary on April 24, 2001 and addressed his duties and responsibilities with her including the authority conveyed to him by the April 16, 2001 Order.

On that same day, the Secretary issued a memorandum to all employees of the Department of the Interior that repeated the Order's grant of the Court Monitor's authority including that he was permitted to make and receive ex parte communications with all entities necessary or proper to effectuate his duties. The Secretary notified all of her employees that Mr. Kieffer "must be provided access to records and documents of the Department, its bureaus and offices, as well as to any officer and employee of the Department and to any of its offices, bureaus or contractors that he deems necessary for the accomplishment of his duties...." *fn1

The Secretary also assigned her Counselor, Michael Rossetti, to meet with Mr. Kieffer so that any concerns of the Court Monitor could be conveyed to the Secretary in order that she might address them and avoid the necessity of the Court Monitor later making a report to this Court about those concerns. This dialogue first took place with Mr. Rossetti during the spring of 2001, as the Court Monitor reviewed the defendants' efforts (or lack thereof) to conduct a historical accounting project.

D. The Deputy Secretary's Request For a Renewed Dialogue

In his declaration, The Deputy Secretary speaks of requesting the Court Monitor to meet with him and the Special Trustee on April 19, 2002 to discuss concerns about the role of the Special Trustee and his office. See Declaration of J. Steven Griles, June 4, 2002 at 1. To read Mr. Griles' declaration, it would appear that this was the first time that Mr. Griles ever requested the Court Monitor to meet with him and his subordinates at the Interior Department. In this regard, the Deputy Secretary's declaration exhibits an alarming lack of candor and comes perilously close to perjury by omission. *fn2 The Deputy Secretary knows that this Court was aware of the Deputy Secretary's oral request on November 1, 2001, on behalf of the Secretary, made to the Court Monitor, to begin a dialogue with the Deputy Secretary and his senior subordinates with the express authorization of this Court. The meetings were for the Deputy Secretary to address the concerns of the Court Monitor and resolve them to further trust reform without the need to involve the parties in additional litigation. Also, their purpose was to alleviate the need for the Court Monitor to submit further Reports to the Court unless the Deputy Secretary could not or would not correct the issues giving rise to those concerns. The Deputy Secretary is also aware that that dialogue, once authorized by this Court on that same date, with the understanding that the defendants' counsel had agreed to this ex parte contact between the Deputy Secretary, his key subordinates, and the Court Monitor, began that evening and continued on a regular basis with him and his key subordinates, the Associate Deputy ...


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