Cobell v. Norton, CIV.A.96-1285(RCL).

• Decision Date: 15 March 2004
• Docket Number: No. CIV.A.96-1285(RCL).,CIV.A.96-1285(RCL).
• Citation: 310 F.Supp.2d 77
• Parties: Elouise Pepion COBELL, et al., Plaintiffs, v. Gale A. NORTON, Secretary of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 77

310 F.Supp.2d 77

Elouise Pepion COBELL, et al., Plaintiffs, v. Gale A. NORTON, Secretary of the Interior, et al., Defendants.

No. CIV.A.96-1285(RCL).

United States District Court, District of Columbia.

March 15, 2004.

Douglas B. Huron, Heller, Huron, Chertkof, Lerner, Simon & Salman, Dennis M. Gingold, Elliott H. Levitas, Kilpatrick, Stockton, LLP, Keith M. Harper, Richard A. Guest, Native American Rights Fund, Mark Kester Brown, Washington, DC, for Plaintiffs.

Alan Lee Balaran, Washington, DC, pro se.

Earl Old Person, Browning, MT, pro se.

Brian L. Ferrell, Charles Walter Findlay, III, United States Department of Justice, Environment and Natural Resources, Cynthia L. Alexander, J. Christopher Kohn, Sandra Peavler Spooner, John R. Kresse, John Warshawsky, Amalia D. Kessler, U.S. Department of Justice, Commercial Litigation Branch, Henry A. Azar, Jr., Jonathan Brian New, U.S. Department of Justice, Federal Programs Branch, Jennifer R. Rivera, John Thomas Stemplewicz, Seth Brandon Shapiro, Dodge Wells, Gino D. Vissicchio, John Joseph Siemietkowski, Michael John Quinn, Timothy Edward Curley, Phillip Martin Seligman, Tracy Lyle Hilmer, John Warshawsky, U.S. Department of Justice, Mark E. Nagle, Robert Craig Lawrence, U.S. Attorney's Office, Robert D. Luskin, Patton Boggs LLP, Christina M. Carroll, Daniel Gordon Jarcho, Herbert Lawrence Fenster, Michael James Bearman, McKenna Long & Aldridge, LLP, Elizabeth Wallace Fleming, John T. Richards, Jr., Trout & Richards, P.L.L.C., B. Michael Rauh, Manatt, Phelps & Phillips, L.L.P., Washington, DC, John Charles Cruden, U.S. Department of Justice, Environment & Natural Resources Division, Annandale, VA, Terry M. Petrie, U.S. Department of Justice, ENRD, General Litigation Section, Denver, CO, for Defendants.

MEMORANDUM OPINION

LAMBERTH, District Judge.

On July 28, 2003, the Court issued a preliminary injunction requiring the Department of the Interior to "immediately disconnect from the Internet all Information Technology Systems within [its] custody or control ... until such time as the Court approves their reconnection to the Internet." Cobell v. Norton, 274 F.Supp.2d 111, 135 (D.D.C.2003). In doing so, the Court carved out two exceptions: those systems impacting life or property and those for which Interior certifies "in accordance with Rule 11 of the Federal Rules of Civil Procedure" that "do[ ] not House or Access ... Individual Indian Trust Data, and provide a specific justification thereof" or are "secure from Internet access by authorized users, and provide a specific justification in support thereof, stating in specific terms the security measures that are presently in place to protect unauthorized Internet access to the Individual Indian Trust Data that the Information Technology System Houses or provides Access to." Id. at 135-36.

On August 11, 2003 Defendants filed certifications attesting to the security of those systems in which individual Indian Trust Data resides or to the absence of such data on others.¹ The Court now considers those certifications and Interior Defendant's Submission Pursuant to the July 28, 2003 Preliminary Injunction Regarding Reconnection of Computer Systems, filed August 27, 2003, in light of Plaintiffs' responses and the entire record. Before doing so, however, it is necessary to recapitulate briefly the history of the parties' respective factual and legal positions concerning the state of information technology system security at the Department of the Interior and the impact of that IT system security on individual Indian trust data.

I. LEGAL BACKGROUND

Interior's obligation to maintain and preserve individual Indian trust data is well established and a corollary of the Secretary's statutory responsibility to: "(1) Provid[e] adequate systems for accounting for and reporting trust fund balances. (2) Provid[e] adequate controls over receipts and disbursements. (3) Provid[e] periodic, timely reconciliations to assure the accuracy of accounts. (4) Determin[e] accurate cash balances. (5) Prepar[e] and supply account holders with periodic statements of their account performance and with balances of their account which shall be available on a daily basis." 25 U.S.C. §§ 162a(d) (1994).² Interpreting these statutory responsibilities, this Court emphasized that "[t]he Indian Trust Fund Management Reform Act, 25 U.S.C. §§ 162a et seq. & 4011 et seq., requires defendants to retrieve and retain all information concerning the IIM trust that is necessary to render an accurate accounting of all money in the IIM trust held in trust for the benefit of plaintiffs." Cobell v. Babbitt, 91 F.Supp.2d 1, 58 (D.D.C.1999) (Cobell V).³

On that score, the D.C. Circuit affirmed "[t]he government's broad duty to provide a complete historical accounting to IIM beneficiaries" and the "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).

It is against this backdrop that the Court analyzes the Secretary's duty to maintain and preserve individual Indian trust data residing on Interior's IT systems, the certifications offered by Interior's agents, and Interior's proposal for the future.

II. PROCEDURAL BACKGROUND

On April 4, 2000, the Court remarked that it was "alarmed and disturbed by the revelation that BIA had no security plan for the preservation of [trust] data ... that BIA has now placed itself in the incredible position that it cannot now create such a plan with its own employees, but that it can do so only if this Court allows BIA to go forward with these government contractors creating the plan, and then insuring that this critical data is preserved and protected." (Hr'g Tr. 11-12, Apr. 4, 2000). As of November 14, 2001, "nothing has changed." Report and Recommendation of the Special Master Regarding the Security of Trust Data at the Department of the Interior at 141 (Nov. 14, 2001). After reviewing and analyzing countless reports and studies performed by both government and private organizations, the Special Master observed that critical data of concern to individual Indian beneficiaries were housed on systems that have:

no firewalls, no staff currently trained/capable of building and maintaining firewall devices, no hardware/software solution for monitoring network activity including but not limited to hacking, virus and worm notification.... [and] a serious lack of wide area networking and security personnel in general. The BIA is also far behind the other bureaus in Interior regarding staffing of messaging systems and infrastructure support.

Report and Recommendation of the Special Master Regarding the Security of Trust Data at the Department of the Interior at 141 (Nov. 14, 2001) (quoting FY 2003 Budget Request to the Department Bureau of Indian Affairs Trust Reform — Information Resources Technology (COP), Statement of Problem/Current Condition).

In reaction to the Special Master's report, on December 5, 2001, the Court ordered "that defendants shall immediately disconnect from the Internet all information technology systems that house or provide access to individual Indian trust data" and "that defendants shall immediately disconnect from the Internet all computers within the custody and control of the Department of the Interior, its employees and contractors, that have access to individual Indian trust data." T.R.O. at 2 (Dec. 5, 2001).⁴

On December 17, 2001, at the behest of Interior,⁵ the Court entered a Consent Order Regarding Information Technology Security ("Consent Order"), modifying the December 5, 2001 temporary restraining order. The Consent Order provided, among other things, that "Interior shall not reconnect any information technology system to the Internet without the concurrence of the Special Master as provided herein," Consent Order at 5, and that

the Special Master shall verify compliance with this Consent Order and may conduct interviews with Interior personnel or contractors or conduct site visits wherever information technology systems or individual Indian trust data is housed or accessed. Each party will have the opportunity to have at least one counsel present at such interviews or site visits, and any additional personnel permitted by the Special Master. The Special Master will provide notice to counsel for both parties in advance of such interviews or site visits, but such notice may be limited to the minimum necessary for counsel to make arrangements to attend. Unless expressly permitted by the Special Master in writing, counsel shall not inform their clients or any third parties about such interviews or site visits in advance[.]

Consent Order at 7-8.

In accordance with the Consent Order, the Special Master retained the services of IBM and subsequently, in March 2002, the Security Assurance Group ("SAG") to conduct independent site risk assessments and external penetration testing in connection with the Consent Order. Both contractors assessed and validated the computer security posture of Interior's systems by conducting site visits to those Department of Interior bureaus and agencies requesting re-connection to the Internet and by performing external penetration testing of Interior's networks pursuant to rules of engagement agreed to by the Special Master and the Department.

Between March 2002 and July 28, 2003, SAG's investigations identified numerous vulnerabilities exposing individual Indian trust data to uninvited review and manipulation.⁶ For example, SAG conducted penetration testing against the Bureau of Land Management ("BLM") from February 10, 2003 through March 26, 2003. According to its report, "throughout all Phases of the testing (I through IV), no effort was made by BLM administrators to...