Court decision lifts cloud hanging over Interior

Federal appeals court reverses order that would have shut down much of Interior’s IT

Senior officials at the Interior Department said they would review a July 11 appellate court decision in a long-running Indian trust fund lawsuit before proceeding with strategic plans and efforts to modernize the department’s information technology. Those initiatives had been on hold pending the court’s ruling.

Ed Meagher, Interior’s deputy chief information officer, said securing IT systems departmentwide will be the top priority of the CIO’s office, whose senior officials “are committed to making the improvements and changes that are required to bring the department and all of its IT assets up to full compliance with all government standards.”

Last week, the U.S. Court of Appeals for the District of Columbia Circuit informed Interior that it could connect its computers to the Internet, reversing a lower court judge’s order that would have shut down many of the agency’s computer networks as a security precaution.

The appellate court also called for the removal of that judge, U.S. District Judge Royce Lamberth, who has overseen the Indian trust fund case for a decade. Lamberth declined to comment, citing policy regarding ongoing litigation.

Last fall, Lamberth issued an injunction requiring Interior to disconnect any computers, networks, handheld devices and voice-over-IP equipment that access Indian trust fund data. That decision, issued Oct. 20, would have prohibited Interior employees, contractors, tribes and other third parties from using those systems. Immediately afterward, an appellate court postponed the shutdown pending appeal.

A representative for the American Indian plaintiffs in the lawsuit said they will appeal the new order to the Supreme Court. “We have said and we still believe that the data is not secure,” said Bill McAllister, the plaintiffs’ spokesman. Language in the July 11 decision about the integrity of Indian trust fund data and Interior’s information security weaknesses should help the plaintiff’s case, he added.

In a statement last week, lead plaintiff Elouise Cobell said the court’s rulings prove the finding that Interior’s computer systems are insecure. “Removing the injunction he had ordered will cause further problems to that data,” she said.

The decisions delivered last week stem from a class-action lawsuit over Interior’s mismanagement of Indian trust funds. American Indian plaintiffs have accused Interior of failing to protect their data from hackers.

The appeal opinions acknowledge extensive evidence of flaws in Interior’s IT security program, but they ultimately favor the government.

“The inherently imperfect nature of IT security means that if we granted injunctive relief here, based only on Interior’s security vulnerabilities and not on a showing of some imminent threat or specific reason to be concerned that individual Indian trust data is a target, we would essentially be justifying perpetual judicial oversight of Interior’s computer systems,” the court’s opinion states.

No evidence has shown that anyone has altered Indian trust fund data by taking advantage of security flaws or that anyone plans to do so, according to the filing. The court determined that disconnecting Interior’s computers from the Internet would have been too disruptive. Under Lamberth’s definition of Indian trust data, “a very high percentage of Interior’s IT systems would be subject to disconnection, with serious consequences,” the opinion states.

Interior’s Minerals Management Service, for example, relies heavily on automated systems and Internet connections to receive, process and dispense revenues from leased federal and American Indian lands. A shutdown would have delayed or prevented the agency from sending monthly disbursements of more than $500 million to states, American Indians and Treasury Department accounts.

“We are confident that the harm Interior would immediately face upon complying with the disconnection order outweighs the class members’ need for an injunction,” the opinion states.

Justice Department lawyers filed a motion earlier with the appeals court requesting that the case be reassigned to a different judge. The motion cited a July 12, 2005, ruling in which Lamberth wrote: “Perhaps Interior’s past and present leaders have been evil people, deriving their pleasure from inflicting harm on society’s most vulnerable…. The government as a whole may be inherently incapable of serving as an adequate fiduciary because of some structural flaw. Perhaps the Indians were doomed the moment the first European set foot on American soil.”

Last week, the appeals court said it had reluctantly concluded that a reassignment was necessary.

Kind words for departing judge

U.S. District Judge Royce Lamberth has presided over the long-running Indian trust fund lawsuit through several administrations. An appellate court recently decided to reassign the case to another judge.

The case was initially filed against the U.S. government and former Interior Secretary Bruce Babbitt and became known as Cobell v. Babbitt. His successor, Interior Secretary Gale Norton, inherited the suit, which became Cobell v. Norton, and when Dirk Kempthorne took office last month, the case became Cobell v. Kempthorne.

The American Indian plaintiffs said they are disappointed that the court has decided to reassign the case. “This will end the truly heroic efforts of a sincere and devoted jurist,” said lead plaintiff Elouise Cobell.

Dennis Gingold, lead attorney for the plaintiffs, said Lamberth “had the courage to speak the truth about the repugnant behavior and deplorable record of the Interior trustee delegates. We will miss him.”

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