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The Kennewick Man Case | Court Documents | Briefs

Plaintiffs' Opening Brief (Part 3)


A. Defendants Ignored Plaintiffs' First Amendment Rights.

The remand admonished defendants for "categorically" dismissing plaintiffs' study claims, and instructed them to give this issue "more serious consideration." 969 F. Supp. at 646, 648. Defendants waited more than three years, then requested an opinion from the Department of Justice one week before the Court's deadline. ER 1, 1a-b. The brief, unsigned memorandum that followed five days later considered only four of the more than twenty cases cited by the Court, made the same arguments defendants offered in 1997, relied heavily on Houchins v. KQED, Inc., 438 U.S. 1, 98 S. Ct. 2588, 57 L.Ed.2d 553 (1978) (which the Court had distinguished), and once again categorically dismissed plaintiffs' study claims.

Defendants argue that the First Amendment prohibits governmental interference with speech only between willing speakers and listeners, and does not compel the government to become an "unwilling" speaker. ER 9; COE 0000194. But that misstates the law, (42) and avoids the point that here are willing speakers and willing listeners: plaintiffs, their students, and other persons interested in prehistory. Plaintiffs do not ask defendants to become unwilling speakers. "Plaintiffs simply want the government to step aside and permit them to 'read the book' [i.e., the skeleton] by conducting their own tests." 969 F. Supp. at 646.

Defendants claim they need not "step aside" because there is no First Amendment right of access to "all" government held information. This argument was made in 1997, and the Court reminded defendants that "plaintiffs do not assert a right of access 'to all sources of information within government control' but only to these particular remains." 969 F. Supp. at 647, n.16. Defendants were directed to consider if there were confidentiality, property rights or security concerns weighing against study. Id. at 648. They refused to do that. Nor can they claim that damage to the skeleton is an issue. The Determination denies study because of the disposition to the Coalition, not because of the skeleton's condition. Defendants' own documents confirm that their studies and C14 sampling in 1999 had only "minimal" effects on the skeleton. ER 103; DOI 05665. An agency's action may be upheld only, if at all, on the basis articulated by the agency. Motor Vehicle Mfrs. Ass'n., 463 U.S. at 50.

Defendants suggest that only criminal trials are required to be accessible, but that too is wrong. A right of access to government-held information has been found in other contexts. See, e.g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S. Ct. 1817, 48 L.Ed.2d 346 (1976) (prescription drug prices). Access depends on the type of information involved and the existence of any valid countervailing interests against release.

Defendants concede that they may not deny access to proceedings "historically open" to the public, but fail to consider that the information sought here has always been available to the public. Government policy for the past 200 years has promoted and sustained public interest in this country's cultural heritage. Government funds archaeological research, museum collections and displays, traveling exhibits, interpretative centers, national monuments, university education, public radio and television programs, reports and other publications about American prehistory, all creating a national marketplace for ideas about the past. Scholars routinely study prehistoric skeletal remains and objects with government approval and assistance. Skeletons are books whose stories can be "read" by trained eyes. 969 F. Supp. at 646. Against this backdrop, it is not for government to determine now that some of these books cannot be read by some scholars.

Denial of study affects plaintiffs in their capacity as teachers, as well as scholars. Without access, plaintiffs cannot teach their students what Kennewick Man might mean for American prehistory. It is in education that the "transcendent imperatives of the First Amendment" are most apparent. Board of Education v. Pico, 457 U.S. 853, 864, 102 S. Ct. 2799, 73 L.Ed.2d 435 (1982). Individual thought, expression and creative inquiry may not be suppressed. Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 835-36, 115 S. Ct. 2510, 132 L.Ed.2d 700 (1995). (43)

Moreover, government-created limited public forums may not violate First Amendment protections. Rosenberger 515 U.S. at 829; Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S. Ct. 2286, 33 L.Ed.2d 212 (1972). A limited public forum can be "metaphysical" instead of bricks and mortar. Rosenberger, 515 U.S. at 829 (student activity fund). Here defendants fostered public debate on Kennewick Man. They issued frequent press releases, held press conferences, lent their support to exhibits and programs, and allowed staff and study team members to participate in public discussions about the skeleton. (44) Study team members and their students have used study data in their writings.(45) A government website publicizes information about the skeleton.(46) Defendants did more than merely publish government information.

Defendants assured the Coalition they wanted to get the "right answer"(47) to stop testing, and said that they wanted to suppress "diffusionist" theories about the peopling of the Americans.(48) Plaintiffs and other scientists who do not share the government's views are denied access to the data needed to participate fully in this debate. Such content or viewpoint discrimination is impermissible. See Rosenberger, 505 U.S. at 391; Perry Ed. Assn v. Perry Local Educators' Assn., 460 U.S. 37, 46, 103 S. Ct. 948, 74 L.Ed. 794 (1983). Government "may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored more controversial views," it may not select which issues are worth discussing or debating in public facilities, but "must afford all points of view an equal opportunity to be heard." Police Department v. Mosley, 408 U.S. at 95-96.

B. Defendants Interfered with Plaintiffs' ARPA Rights.

Defendants summarily dismiss any thought that plaintiffs could have study rights under the statutes cited four years ago. See Plaintiffs' Memorandum, ER 44-49; COE 8005-10. They argue that the Antiquities Act, 16 U.S.C. §§ 431-433, and ARPA confer no benefits because they provide for access "through a permit system." But permits have never been required for study of human remains or other objects following their removal from a site (49).

ARPA protects archaeological resources for the benefit of the American people. See 16 U.S.C. § 470aa (b). Defendants may not interpret "people" as only themselves and the Coalition, but not plaintiffs. While Coalition members were allowed to conduct religious ceremonies with the skeleton, even as late as April 27, 2000, (50) plaintiffs' requests for study were vetoed even though those requests are proper under ARPA. See, e.g., 36 C.F.R. § 79.10(a) and (b) (collections shall be made available to qualified professionals for study, scientific analysis and scholarly research). (51) NAGPRA is silent on study of inadvertent discoveries, and where it speaks of study (museum collections, 25 U.S.C. § 3005) it merely regulates timing. It would take more than Congressional silence to impose a study restriction on inadvertent discoveries for "it is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law." Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 241, 90 S. Ct. 1583, 26 L.Ed.2d 199 (1970).


NHPA protects the "historic heritage" of the nation in historic and prehistoric resources. 16 U.S.C. § 470(b), 470-1(3). See Fein v. Peltier, 949 F. Supp. 374, 378 (D. V.I. 1996), recon.den., 1997 WL 180771 (D. V.I. 1997). NHPA applies to all federal properties that are included, or eligible for inclusion, in the National Register of Historic Places.(52)

A. Defendants Refused To Consult With All Interested Parties.

Federal agencies must consult with interested parties before any "undertaking" that affects an eligible property.(53) 16 U.S.C. § 470f, 36 C.F.R. § 800.1(c); Attakai v. United States, 746 F. Supp. 1395, 1408 (D. Ariz. 1990). An undertaking is "any project, activity, or program that can result in changes in the character or use of historic properties." 36 C.F.R. § 800.2(o). Burial of the discovery site affected its "character or use," and was an undertaking.(54)

Plaintiffs were "interested parties," because they are "individuals that are concerned with the effects of an undertaking on historic properties," 36 C.F.R. § 800.1(c)(2) § 800.5(e). Agencies must "provide an adequate opportunity for members of the public to receive information and express their views." 36 C.F.R. § 800.5(e)(3). Defendants violated that rule.
Defendants knew of plaintiffs' interest in the site. Drs. Bonnichsen and Haynes were members of a team that in August 1997 asked to conduct geoarchaeological investigations of the site. ER 310-12; COE S-854, S-862, S-863. Before that, plaintiffs told defendants that study of the site was important to determining the skeleton's status under NAGPRA, and asked whether there were any plans "to conduct any activities at the site that would change the site in any manner." ER 270; COE S-402. Defendants did not respond to this or other letters. ER 266, 269, COE S-398, S-401.

Even though planning for site burial started shortly after the skeleton's discovery, (55) defendants withheld notice to plaintiffs until the end of December 1997 when construction bids were already being solicited. ER 306; COE S-614. Remarkably, defendants sent this notice by regular mail, and gave plaintiffs only six days from the date of mailing to comment. Defendants, however, had sought Coalition input on their initial plans as early as October 9, 1996. ER 272; COE S-409. When new plans were developed in 1997, defendants again notified the Coalition, held meetings with them, and kept them advised of developments. See Appendix B.

Plaintiffs do not object that defendants consulted with the Coalition. They do object that they were ignored and not given an "adequate opportunity" to receive information and express their views. 36 C.F.R. § 800.5(e)(3). Plaintiffs also object that defendants concealed their efforts to convince the responsible state agency (Washington SHPO) that the cover up would have no adverse effect on the site. Plaintiffs learned of this conduct too late to intervene. ER 280, 285, 286-87; COE S-435, S-474, S-480-81.

B. Defendants Did Not Assess or Mitigate Adverse Effects on the Site.

NHPA requires agencies to: (i) assess whether an undertaking will alter the characteristics that qualify a property for the National Register, 36 C.F.R. §§ 800.4(e), 800.5, 800.9; (ii) determine whether there will be any effect, including destruction, damage or alteration of all or part of the property which will diminish "the integrity of the property's location, design, setting, materials, workmanship, feeling or association," 36 C.F.R. §§ 800.5(c), 800.9(b); and (iii) avoid or mitigate any adverse effects, 36 C.F.R. § 800.5(e).

The decision to bury the site was made November 10, 1997 by the White House and put "on a fast track." ER 308; COE at S-821. (56) Lt. Col. Curtis directed use of riprap and set a completion date of "no later than 1 January 1998." Despite warnings from a Corps scientist that "it would seem advisable to be cautious about long term deleterious effects of engineering site protection measures," (57) defendants ignored their assessment and mitigation obligations. The Section 106 process must be completed before the approval of expenditure of federal funds. 36 C.F.R. § 800.3(c).

(1) Defendants were required to evaluate the site's contents, including any cultural components.(58) Because cultural contents can vary widely, "these differences must be considered in the technology selection." ER 350; Stabilization Guidelines at 30. Defendants did only a walking survey of the surface and a document review before November 10, 1997. They did not excavate to see what was under the surface (59) and were ignorant of the site's characteristics when they decided to bury it. They had "no idea if any additional in situ and significant archaeological resources exist on the adjacent terrace"; because no subsurface testing had been done on the terrace, "we have not been able to define site characteristics or site boundaries, including depth." ER 19; COE S-673 (Curtis letter).(60)

(2) Since all site stabilization techniques have potentially negative effects, each technology must be evaluated to eliminate those likely to have an adverse impact on cultural deposits. ER 351; Stabilization Guidelines at 31. Defendants did not do an evaluation. (61) When plaintiffs forwarded letters objecting to the burial. (62) Lt. Col. Curtis refused to address the objections. ER 282; COE S-451. Defendants did not even acknowledge other objections. ER 302; COE S-596-99 (Schneider, 12/29/97).

(3) Techniques for site preservation should be selected from "a list of carefully considered alternatives." ER 339a; Stabilization Guidelines at 10. There were many alternatives that could have been used here, including a rock cofferdam or berm on the beach (see ER 481; Plaintiff's Third Status Report, dkt. #137, Exhibit B at 23); anchored brush piles or tires (ER 356; WES Technical Notes, ASPPN II-2, at 3); anchored filter fabric (ER 363-64; AEP Technical Brief, 1, NPS at 1, 7); planting grass and other shallow root vegetation which can reduce wave forces by as much as 90% (ER 366 AEP Technical Brief 8, NPS at 3). Although the record contains occasional references to alternatives such as vegetation (ER 309; COE S-822), they were apparently not seriously considered.

(4) Any loss of potential data from a site must be mitigated. 36 CFR § 800.5(e); Stabilization Guidelines at 25. Options include data recovery through excavation (ER 345-47; Stabilization Guidelines at 25-27) or providing means for later access to site cultural components (ER 358; WES Technical Notes, ASPPN II-3, at 9). Defendants made no provision for the latter option, and actively blocked efforts by the Huckleberry research team to pursue the former.

(5) Site preservation must include a regular, systematic program for monitoring post-stabilization conditions. See ER 362; WES Technical Notes, ASPPN I-10, at 2. There is no evidence that defendants have made any effort to monitor the site.

C. Burial of the Site Obstructed the Gathering of Evidence.

Many questions about the skeleton have not been resolved, including its original placement in the site, the geologic age of the site, whether that age is inconsistent with the skeleton's age, and how the skeleton was deposited there. Any cultural deposits or other human remains at the site could have provided evidence of Kennewick Man's cultural or biological connections, but are now buried under tons of rubble. Even if future investigations are permitted, the damage to the site may be irreparable.


Despite their obligations under ARPA and the Court's Remand, and contrary to their assurances that all needed remedial actions had been taken, ER 27-30; COE 6703-6704, 6731-6732, defendants allowed the skeleton to remain for months in substandard, unsafe conditions. Even after the relocation to Seattle, defendants' conduct still gives cause for concern.

There is still no long-term preservation plan, notwithstanding the recommendations of plaintiffs' curation expert and defendants' promises. See ER 80; DOI 03403 (Leckie memo); ER 17; COE 0004787 (Revised MOA); ER 484, 486; Defendants' 6th Status Report at 2, dkt. #196, Enclosure H at 12. Instead, defendants are using "a series of action plans," and a long-term preservation plan may come only when this controversy has ended. ER 405 (Rumsey 2/24/00). Defendants have also allowed substantial fluctuations to occur in relative humidity even though they promised it would stay between 40 and 45%. ER 484, 486; Defendants 6th Status Report; dkt. # 196, at 2, Enclosure H at 7. Datalogger readings at the Burke Museum show a low of 16.9% to a high of over 54%. ER 528-29; Defendants' February 2001 Curation Status Report, dkt #410, Attachment C at 56, 112. Low levels can damage skeletal remains. ER 64; DOI 01884. Levels have fallen below 30% many times. See, e.g., ER 104; DOI 05666; ER 371-74.


After the remand, plaintiffs made repeated FOIA requests so they could participate fully in the administrative reconsideration. Defendants repeatedly frustrated those requests.

FOIA is "intended to establish a general philosophy of full agency disclosure and to close the loopholes which allow agencies to deny legitimate information to the public." GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 385, 110 S. Ct. 1194, 63 L.Ed.2d 467 (1980); see also Dept. of Air Force v. Rose, 425 U.S. 352, 361, 96 S. Ct. 1592, 48 L.Ed.2d 11 (1976) (objective of Congress was to pierce veil of administrative secrecy and open agency action to public scrutiny).

Defendants denied plaintiffs' first FOIA request (for evidence submitted in support of any claim to the skeleton), stating that a party in litigation may not use FOIA (ER 240; COE F-353), even though that is not a valid exception. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, n.23, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978); Maycock v. Nelson, 938 F.2d 938, 1008 (9th Cir. 1991). Plaintiffs appealed on November 12, 1997. ER 233; COE F-342. That appeal remains undecided, and defendants refuse to set a decision date. ER 402; Schneider, 6/8/98; ER 404, 409; DOA 6/12/98, 7/12/00.

Plaintiffs appealed the partial denials of the second and third FOIA requests on September 1, 1998. ER 223, 228-32; COE F-083, F-088-92. Those appeals also remain undecided. The partial response did not include many nonprivileged items now found in defendants' administrative record. See, e.g., ER 20; COE 5679 (meeting with Coalition to discuss site burial); ER 294; COE S-490 (letter to Washington SHPO); ER 399 (Leier 10/17/97) (treatment of ARPA permit applications). Over four months elapsed before defendants produced documents in response to plaintiffs' fourth FOIA request (ER 217; COE F-002), well beyond the statutory period. See 5 U.S.C. § 552(3), 552(6). Plaintiffs' fifth FOIA request, ER 221; COE F-074, was denied because of a dispute over expenses relating to the second and third FOIA requests which were then on appeal. ER 219-20; COE F-070, F-073. Even though the disputed sum was paid on December 14, 2000, defendants delayed production until March 12, 2001. ER 424; DOA 3/12/01. Plaintiffs' sixth FOIA request has yet to be answered completely. See ER 412, 415; Schneider 10/24/00, 12/12/00; Er 411, 414, 419; DOA 11/30/00, 12/22/00, 1/9/01. This repeated misuse of FOIA reinforced plaintiffs' exclusion from the administrative process. Defendants admitted they intended to withhold documents from plaintiffs: one internal memo claimed "[p]roviding the documents under FOIA now would be disruptive to the administrative process and misleading." ER 242; COE F-466.


Defendants expressed the intent in 1996 to make a "clear, unequivocal demonstration of the Corps' commitment "to the tribes as being a compassionate and supportive partner in restoring the remains to a condition of proper internment." (ER 396; COE 0656) Despite the remand, that intent did not change. Only a few weeks after signing his Determination, Secretary Babbitt told the National Congress of American Indians that "our partnership has been one of the greatest, most transcendent experiences of my life, and I will always, always be available and fight for your cause, whenever or wherever you call upon me to do so." ER 338; AP news story, November 14, 2000.

These two declarations and defendants' intervening conduct demonstrate the futility of a second remand and provide abundant support for a grant of affirmative relief. "[I]n an appropriate case, we may order the substantive relief sought, even if doing so supplants the decision of the agency." Guerrero, 970 F.2d at 636. See also Alvarado Community Hosp. v. Shalala, 155 F.3d 1115, 1125 (9th Cir. 1998), amd, 166 F.3d 950 (9th Cir. 1999) (ordering relief in lieu of remand because of duration of controversy and concern to avoid "further recondite litigation"); and see Gete v. INS, 121 F.3d 1285, 1292 (9th Cir. 1997) (courts must "be equally reluctant to license 'free-wheeling' agencies [to mete] out their own brand of justice"). Greene v. Babbitt, observed:

"The import of these cases is that when agency delays or violations of procedural requirements are so extreme that the court has no confidence in the agency's ability to decide the matter expeditiously and fairly, it is not obligated to remand. Rather than subjecting the party challenging the agency action to further abuse, it may put an end to the matter by using its equitable powers to fashion an appropriate remedy." 943 F. Supp. 1278, 128

Defendants have violated fundamental principles of black letter law that are not even arguable. Inexcusable ex parte contacts took place between the decisionmakers, the White House, and the lawyers opposing plaintiffs. These violations of basic fairness were compounded by other improper contacts with the Coalition. Defendants coached the Coalition on how to plead its case. They kept plaintiffs in the dark about the issues and information being considered, but sought Coalition help in opposing plaintiffs' study requests. ER 53-54; COE 8267-8268.

At times defendants were defiant. Although House and Senate measures were pending, defendants hurriedly mobilized, and at a cost of $166,000 (ER 247; COE S 272) dumped tons of rubble on the site during the Congressional Easter recess, completing the project just in time to avoid being overtly contemptuous of Congress. (63) In the process, they ignored their obligations under NHPA and that disregard for the law continues. Trees recently planted at the discovery site have created new threats to its scientific values. See Chatters affidavit. They also ignored, or gave the narrowest of readings to, this Court's order to preserve the remains' scientific value. Bones from the discovery site were not properly preserved, and Court intervention was needed to move the collection to a safer, more secure facility. Even today, no long-term preservation plan has been prepared.

Again and again, plaintiffs have had to return to the Court to compel defendants to do what should be done. Despite prodding from the Court to resolve this matter expeditiously, defendants found one excuse after another to delay the decisionmaking process.(64)

Defendants ridiculed Dr. Owsley, suggesting he be juxtaposed to a news article on space aliens, (65) and raised nothing but objections to plaintiffs' requested studies. Eventually they conducted some of those studies themselves, but excluded plaintiffs. Their acts and decisions cannot be excused as innocent. They had access to enormous legal resources, and they had the Court's instructions. Their treatment of plaintiffs' study claim demonstrates the futility of another remand. Defendants left consideration of that issue to the last week, and then produced a superficial, cut and paste opinion that repeats arguments the Court criticized three years earlier.

Bias and partiality need not even be inferred. Defendants looked for the "right answer" so that study could be denied or limited, and discussed how this project might end a troublesome (to them) scientific debate about how the New World was populated. Over the past four years, plaintiffs submitted stacks of documentation as they tried to guess about the issues defendants might be considering. The record shows no sign that plaintiffs' submissions were seriously considered.

Defendants ignored established procedures for how agencies are to do their work. They wrote legislative rules (like the 1492 Rule) with no notice or opportunity for comment, and no apparent consideration of alternatives. Although they are obligated by law to follow the words Congress used in NAGPRA, their use of terms such as "Native American," "shared group identity," "tribe" and "final judgment" bear little resemblance to what Congress wrote or intended. Defendants have given little regard to the Constitution. They accepted religious beliefs as proof of the "truth" of past events, and allowed religious objections to veto requests for study of the skeleton and its discovery site.

If there were but one or two errors here to correct, the Court and plaintiffs might have some reason to believe a second remand might lead to a third decision based on the law and adequately supported by reliable, relevant evidence. But when agencies so evade the law and so ignore rules, policies, guidelines, procedures and this Court's directions, they can no longer ask the Court or plaintiffs to be patient or trusting. The Court should exercise its authority and resolve this case, granting the relief requested in plaintiffs' Amended Complaint. If there are questions about what remedies are most appropriate, the Court may order a further hearing to address those issues.

RESPECTFULLY SUBMITTED this 16th day of April 2001.


By (signed)
Paula A. Barran, OSB No. 80397


By (signed)
Alan L. Schneider, OSB No. 68147


(41) ER 416; (Bevan, 12/20/00), ER 519-20; Response to Motion at 6-7, dkt. #385.

(42) The First Amendment protects speech even in the face of unwilling listeners. Erznozkik v. City of Jacksonville, 422 U.S. 205, 210-11, 95 S. Ct. 2268, 45 L.Ed.2d 125 (1975) (unwilling viewers of drive-in movies); Texas v. Johnson, 491 U.S. 397, 408-09, 109 S. Ct. 2533, 105 L.Ed.2d 342 (1989) (flag burning where offense depended on audience reaction). Moreover, speakers need not be "willing." Otherwise, there would be no Constitutionally protected right to publish works posthumously or to read letters written willingly to only one recipient. If "willing speaker/willing listener" were the only test, the Pentagon Papers could never have been published. See New York Times Co., v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L.Ed.2d 822 (1971) (refusing to enjoin publication).

(43) See also Sweezy v. State of N.H. by Wyman, 354 U.S. 234, 250, 77 S. Ct. 1203, 1 L.Ed 2d 1311, (1957), reh. den., 355 U.S. 852 (1957).("To impose any straight jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made"); Montero v. Tempe Union High School District, 158 F.3d 1022, 1027, n.5 (9th Cir. 1998) (students have right to receive ideas to stimulate thought and education).

(44) Drs. McKeown and Powell spoke at a lecture series that helped launch the Burke Museum's traveling exhibit on Kennewick Man. ER 84, 89-90; DOI 04226; 04231-32. In addition to many press releases (ER 193-216; DOI 10814-10837), Dr. McManamon and members of the study team participated in press conferences at the Burke Museum creating the impression of government support for the museum's activities. ER 196, 212; DOI 10817, 10833.

(45) Drs. Powell, Kaestle, Smith and Trimble have presented papers at private scientific conferences using data about the skeleton. See Jantz and Owsley affidavits. One of Dr. Rose's students used CT scans of the skeleton to obtain data for a paper presented at a public conference. Owsley affidavit.

(46) Available at See ER 383; DOI 1999 Performance Report at 32 (web sites are learning tools). Another website provides information on the Spirit Cave remains. Available at

(47) See notes of July 14, 1998 consultation meeting. ER 18; COE 05130.

(48) Dr. McManamon said: "In US there continues to be a belief that non-Indians occupied and substantially affected cultural developments in ancient America. An American Indian DNA haplogroup for K-Man would help dispel this interpretation in this case." ER 115-116; DOI 06550-06551. (McManamon e-mail). Dr. McManamon was frequently quoted in DOI's press releases, he publicly approved defendants' study team and their studies of the skeleton, he promised that examination data and reports would be "made available and accessible to scientists, classrooms and interested citizens." ER 210; DOI 10831. He told the press and public about the studies and tests conducted by defendants' outside experts, as well as his personal ideas about Kennewick Man's life. ER 201, 107a, 108; DOI 06040, 10822. It is not the role of government to "attempt to blot out a particular theory." Epperson, 393 U.S. at 109.

(49) See Plaintiffs' Response, ER 39-40; COE 7584-85. In Re Meriwether Lewis, 999 F. Supp. 1066 (M. D. Tenn. 1998) is inapposite. A permit was needed there because the remains had to be exhumed. Even if a permit were needed here, defendants give no reason why it would not be granted. See Lanphere & Urbaniak v. Colorado, 21 F.3d 1508, 1512 (10th Cir. 1994), cert den. 513 U.S. 1044 (1994) (even "privileges" are constitutionally protected).

(50) ER 10; COE 0000357. Coalition representatives were also given access to the skeleton to conduct religious ceremonies on at least five occasions prior to its transfer to the Burke Museum. See ER 78; DOI 03169; ER 34; COE 7128.

(51) The Secretary's 1996-97 Report to Congress, ER 387, acknowledges the obligation to make federal collections available to researchers, emphasizing the need to "undertake, facilitate, and promote research using collections and records to better understand the past." (Report Preface).

(52) 16 U.S.C. § 470f. The discovery site is part of the Tri-Cities Archaeological District listed on the National Register of Historic Places in 1984. ER 301; COE S-544;

(53) Part 800 was substantially modified in 1999. Unless otherwise noted, all references to the regulations in this brief are to the regulations as they existed at the time of the cover-up of the site.

(54) Defendants did not dispute that it did. The Corps' submission to the Washington Office of Archaeology and Historic Preservation ("SHPO") cited Section 106 (16 U.S.C. § 470f) as controlling. ER 294; COE S-490.

(55) Drawings were in existence before October 9, 1996. ER 272; COE S-409.

(56) The ARPA permit application filed by the Huckleberry research team on August 26, 1997 appears to have been the precipitating event for revival of the Army Corps earlier, abandoned proposal to bury the site. Earlier Army Corps documents in 1997 indicate little concern for immediate "stabilization" of the site.

(57) See ER 279; COE S-432, also cautioning that: "The erosion obviously occurring here is serious but not as serious as that occurring at many other Corps of Engineers Reservoirs." ER 278; COE S-431.

(58) See ER 350; Guidelines for the Organization of Archaeological Site Stabilization Projects: A Modeled Approach, Army Engineers Waterways Experiment Station, Vicksburg, MS., June 1988 at 30 ("Stabilization Guidelines"); ER 360; "Technical Notes ASPPN II-4, Army Engineer Waterways Experiment Station, Vicksburg, MS.," at 4. ("WES Technical Notes")

(59) "All significant sites should be subject to an archaeological review with sufficient excavation to evaluate each site prior to embankment cover." ER 358; WES Technical Notes, ASPPN II-3 at 9.

(60) See also ER 293; COE S 487: ("Presently, there is insufficient data available to assess the terrace area."). A few auger cores and bank sediment profiles were taken at the site in December 1997. These, however, were not sufficient to identify the site's cultural components. See ER 370; WES Draft Phase Two Report at 44 ("Only minimal archaeological interpretation can be justified at this time"). Furthermore, they were not made in time to assist in the decisionmaking process. See Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000) ("An assessment must be prepared early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made").

(61) Evaluation requires documented analysis of all relevant considerations. See ER 353-54; Stabilization Guidelines at 33-34.

(62) ER 271, 288, 298-300; COE S-407, S-482, S-534, S-535-36. Some of Dr. Stafford's concerns were: loss of potentially important cultural and scientific data; creation of obstacles to future investigation of the site; contamination of the site by foreign sediments and modern organic carbons.

(63) See ER 253, 255; COE S-345, S-349. S. 1768 was introduced March 17, 1998 and HR. 3575 and 3579 were introduced March 27, 1998. The Easter recess started April 4, 1998. Defendants began the site cover-up on April 6, 1998. Dutch Meier of the Army Corps announced that work needed to be completed by April 15, 1998. ER 252; COE S-343. The Easter recess ended April 20, 1998.

(64) See ER 116; DOI 06551 (DNA testing would provide "more time and room for maneuver for DOI/DOJ/COE") (McManamon e-mail).

(65) ER 397 (McKeown 9/24/96).

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