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COBELL v. NORTON

November 12, 2002

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



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

  MEMORANDUM AND ORDER

This matter comes before the Court on Plaintiffs' Motion for Order to Show Cause Why Secretary Norton and Her Counsel Should Not Be Held in Contempt and For Sanctions For Violating the Special Master's February 8, 2001 Order and the Court's Orders of February 24, 1999 and August 12, 1999 ("Motion for Order to Show Cause") [704], and defendants' responses [714, 747] and plaintiffs' reply [718] thereto. On October 1 and 28, 2001, the Special Master issued two opinions ("Special Master Opinion" and "Supplemental Opinion") recommending that the Motion for Order to Show Cause be granted. Defendants took issue with the findings expressed in those opinions and urged the Court not to adopt the Special Master's recommendation. While the Court finds considerable merit in the Special Master's analysis and deems the actions taken by Interior to be anathema to the orderly administration of this litigation, the Court is reluctantly constrained to reject the Special Master's recommendation and deny the Motion for Order to Show Cause.

I. BACKGROUND

The facts leading up to the Special Master Opinion and Supplemental Opinion are a matter of record that need only be briefly recapitulated. Between January 16, 2001 and January 31, 2001, the Special Master drafted three letters to Interior counsel regarding records-related communications between Interior employees and the Office of the Special Master. On January 16, 2001, the Special Master directed the Office of the Solicitor to convey to "the appropriate personnel as soon as possible" the fact that all Interior Department employees may contact the Special Master to discuss any records-related concerns. January 16, 2001 Letter from Special Master Alan Balaran to Department of Justice Attorney Charles Findlay at 1. On January 17, 2001, the Special Master reiterated this instruction and directed the Solicitor's Office to "convey: (1) that all BIA employees may contact the Office of the Special Master concerning any and all issues relating to the protection and preservation of IIM records; (2) that all such communications will be kept strictly confidential; and (3) that any employee who contacts the Special Master to report on matters relating to IIM records will be protected from retaliation pursuant to the Court's order dated May 21, 1999." January 17, 2001 Letter from Special Master Alan Balaran to Department of Justice Attorney Charles Findlay at 1. Finally, on January 31, 2001, the Special Master addressed a letter to the Department of Justice instructing that "[h]enceforth, all BIA/OST/OTR [Bureau of Indian Affairs/Office of the Special Trustee/Office of Trust Records] employees may contact me directly concerning any records-related matter in complete confidence and without fear of reprisal. Please make certain that this communication is properly circulated." January 31, 2001 Letter from Special Master Alan Balaran to Department of Justice Attorneys Phillip Brooks and Charles Findlay (emphasis in original).

Concerned that these "three unambiguous directives [failed] to elicit an affirmative response" from defendants (Special Master Opinion at 12), on February 8, 2001, the Special Master ordered "the Bureau of Indian Affairs, the Office [of] the Special Trustee and the Office of Trust Records [to] distribute an appropriate memorandum informing all employees that they may communicate directly with the Office of the Special Master concerning any IIM records-related matter in complete confidence and without fear of reprisal." ("Anti-Reprisal Order").

To verify the agency's compliance with the Anti-Reprisal Order, the Special Master, on February 13, 2001, asked defendants to "transmit to [the Office of the Special Master], no later than close of business, Wednesday, February 21, 2001, a copy of the memoranda generated by BIA, OST and OTR and a list of the locations to which these memoranda have been distributed." February 13, 2001 Letter from Special Master Alan Balaran to Department of Justice Attorney Charles Findlay. The Special Master also undertook an independent investigation which revealed that Interior had distributed the Anti-Reprisal Order to only nine of 15 randomly-contacted BIA field offices and that one of those offices had not yet distributed it to its employees.*fn1 On March 2, 2001, the Special Master conveyed these findings in a letter to Interior (see Letter from Special Master Alan Balaran to Department of Justice Attorney Charles Findlay at 1), which prompted plaintiffs to file the underlying Motion for Order to Show Cause alleging that Interior obstructed the Special Master's attempts to notify Interior employees of their ability to communicate with the Office of the Special Master, violated the Anti-Reprisal Order by failing to distribute it, and falsely represented to the Special Master that they were in compliance with the Anti-Reprisal Order. Motion for Order to Show Cause at 3; Reply at 1.

Interior, in response to the Motion for Order to Show Cause, acknowledged an "unintentional delay in distribution" of the Anti-Reprisal Order, but maintained nonetheless that they had "substantially complied" with the Anti-Reprisal Order, in that "the vast majority of the agency offices received and distributed the order or a memorandum describing the order shortly after receiving such documents from the regional office." Defendants' Response to Plaintiffs' Motion for Order to Show Cause at 4, 5. In support, the agency tendered memoranda generated by Acting Deputy Solicitor Timothy Elliott, former Deputy Commissioner for Indian Affairs M. Sharon Blackwell, former Special Trustee Thomas Slonaker and former OST Chief of Staff Jim Douglas that purported to convey the Special Master's message.

On October 1, 2001, the Special Master issued his Opinion holding that "the lethargy [Interior] displayed in disseminating the Order" coupled with "the tone and substance of the memoranda generated by agency officials to which the Anti-Reprisal Order was attached" rendered it foreseeable "that the Special Master's initiative to encourage an unfettered dialogue with Interior employees regarding trust records would be ineffective and, thus, insubstantial." Special Master Opinion at 20.*fn2 This, according to the Special Master, was emblematic of the agency's "failure to `take all reasonable means' to effectuate the Anti-Reprisal Order." Id.*fn3

Interior disputes the Special Master's recommendation that contempt should lie, arguing that "regardless of whether Interior initially complied with the Special Master's instruction regarding distribution of the Anti-Reprisal Order . . . Interior has now renewed its compliance and will continue to do so in the future." Response of the Department of the Interior to Special Master's Recommendation Dated October 1, 2001, Regarding Plaintiffs' Motion for Order to Show Cause at 4 ("Response to Special Master Opinion"). Specifically, Interior observes that it

re-distributed the Order by e-mail and is in the process of re-distributing the Order by regular, first-class United States and intra-office mail. In this second distribution, Interior included a new cover memorandum from Deputy Secretary of the Interior J. Steven Griles to all employees of BIA, OST and OTR, which contains language suggested by the Special Master in his opinion. . . . Also, every calendar quarter starting approximately January 22, 2002, Interior will have a message printed in the leave and earnings statements mailed to each BIA, OST, and OTR employee, reminding the employee of the terms of the Anti-Reprisal Order.

Id. at 3-4.

On October 28, 2001, the Special Master reviewed OTR's certifications of compliance and discovered that some employees of that office did not receive the Anti-Reprisal Order for three months, if at all. The Special Master, accordingly, issued a Supplemental Opinion that "reaffirmed the findings of the Special Master Opinion that the Department of the Interior . . . failed to comply with the February 8, 2001 Order of the Special Master . . . and call[ed] into question the conduct of those who represented otherwise." Supplemental Opinion at 1.

Confronted with this troubling record, the Court must determine whether Interior's conduct supports the issuance of a show cause order. It is with considerable reluctance that ...


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