U.S. Department of Justice
                                         Civil Division, Appellate Staff
                                         950 Pennsylvania Ave., N.W., Rm: 7531
                                         Washington, D.C. 20530


                                                               Tel: (202) 514-5089
                                                               Fax: (202) 514-8151


                                  November 7, 2005


   Mr. Mark J. Langer
   Clerk, United States Court of Appeals
    for the District of Columbia Circuit
   United States Courthouse
   Room 5423
   Third & Constitution Avenue, N.W.
   Washington, D.C. 20001


         Re:     Cobell v. Norton, No. 03-5288


   Dear Mr. Langer:

         Pursuant to Fed. R. App. P. 28(j), we call to the Court's attention that on November 3,
   2005, plaintiffs filed in the district court an opposition to a government motion for a protective
   order, expressly citing Special Master Balaran's August 2003 "site visit" report as part of their
   ongoing efforts to pursue further discovery. ! Docket No. 3207, filed 11/03/05, at 2 n.3 (copy
   attached).  Plaintiffs have urged that the issue of Mr. Balaran's disqualification is moot. The
   government has argued that the matter continues to present a live controversy, in part because of
   plaintiffs' continued reliance on reports issued by Mr. Balaran in July 2003 in connection with
   NAID and in August and September 2003 in connection with specified site visits. Plaintiffs'
   reliance on the August 2003 site visit report underscores again that the issue of Mr. Balaran's
   disqualification is not moot.

         We would appreciate your distributing copies of this letter, with the attachment, to the
   members of the panel before whom oral argument was heard on October 14, 2005. Thank you
   very much for your assistance.

r!STAThS!U!OF!
 FOR DISTRICT OF COLUMBIA CIRcUIT
I

II

Respectfully submitted,


                                 2

cc:    Elliott H. Levitas
       G. William Austin, Ill
       Mark I. Levy
       Dennis Marc Gingold
       Keith M. Harper
       Earl Old Person

PETER D. KEISLER
Assistant Attorney General

KENNETH L. WA1NSTETN
United States Attorney

GREGORY G. KATSAS
Deputy Assistant Attorney General

ROBERT E. KOPP
MARK B. STERN
THOMAS M. BONDY
ALISA B. KLEIN
MARK R. FREEMAN
I. GLENN COHEN
Attorneys, Appellate Staff