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The Kennewick Man Case | Court Documents | Briefs

Plaintiffs' Reply Brief (Part 2)


Defendants misstate the law when they assert that they are entitled to Chevron deference when interpreting their own regulations. Defendants' Memorandum at 21. Chevron deference applies to a formal regulation adopted pursuant to APA's strict procedures, and then only as long as the regulation is consistent with the expressed intent of Congress. Chevron, 467 U.S. at 842-43. Chevron does not give agencies license to ignore the words used by Congress or to add qualifications and exceptions not authorized by the statute. See Plaintiffs' Memorandum at 4-7, 9. Interpretations, moreover, are not entitled to Chevron deference. Christensen, 529 U.S. at 586-87.

Defendants' attorneys also cite 43 CFR § 10.14 as authorizing cultural affiliation to a coalition. It does not do that. 43 CFR § 10.14 defines "cultural affiliation" as a relationship of shared group identity that may be reasonably traced between a present-day Indian tribe (singular number) and an identifiable earlier group. 43 CFR § 10.14(c). It requires that the proponent meet "all of the following requirements," listing first the "existence of an identifiable present-day Indian tribe or Native Hawaiian organization with standing under these regulations and the Act." 43 CFR § 10.14(c)(1). Subsection 10.14(c)(3) requires evidence of the existence of a shared group identity between "the present-day Indian tribe" (singular number) and the earlier group. Subsection 10.14(f) requires that cultural affiliation must be established by a preponderance of evidence with "a present-day Indian tribe" (singular number). Despite defendants' professed claim that the regulations permit repatriation to a coalition, the Secretary admitted that he was uncertain that was so. SER 31, DOI 10014.

Defendants claim that the definition of Indian tribe found in § 3001(7) of the statute contemplates disposition to multiple claimants because it defines a tribe to include an organized group of Indians. Defendants' Memorandum at 21. Congress' definition does not stop there. Congress provided that an "organized group" is an "Indian tribe" only if it is "recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians." 25 USC § 3001(7). Defendants made no showing that the Coalition is eligible for such programs and services. They do not have the authority to read that proviso out of the statute, and their assertion that they have repatriated to multiple claimants before is not authoritative. Connecticut Light and Power Co., 627 F.2d at 473 (agencies are not entitled to violate the law just because they do it often enough).

Defendants also argue that the Secretary found that each tribe was separately culturally affiliated to the skeleton. Defendants' Memorandum at 22. He did not do that, and none of defendants' citations to the record supports that assertion. The Secretary's discussion speaks only in terms of the claimants as a collective group.(18) The sentence from the Secretary's Determination cited in Defendants' Memorandum at 22 is merely descriptive of the members of the Coalition and does not analyze any of them individually.(19)


A. Informal Adjudication Was Not Appropriate In This Case.

Defendants may not excuse their procedural lapses by calling their process "informal." That concept does not apply here, nor does it excuse improper agency procedures or ex parte contacts. The APA does not identify "informal adjudication" as a separate category of agency action. It is, instead, "a residual category of procedural entitlement that grows or diminishes in 'formality' more by judicial and administrative notions of fairness than by legislative plan or design." Verkuil, "A Study of Informal Adjudication Procedures," 43 U. Chi. L. Rev. 739, n.1. Even where some agency informality is proper, the degree of informality permitted must be guided by a principled consideration of "what procedures due process may require under any given set of circumstances" which in turn begins with "a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action." Wolff v. McDonnell, 418 U.S. 539, 560, 94 S. Ct. 2963, 41 L.Ed.2d 935 (1974).

One determinant is whether the agency' actions "closely resemble judicial determinations" by defining the specific rights of individuals or entities. Marathon Oil v. EPA, 564 F.2d 1253, 1261 (9th Cir. 1977). When a task requires an agency to weigh evidence and make determinations in an order supported by findings, the process is quasi-judicial. Morgan v. United States, 298 U.S. 468, 480, 56 S. Ct. 906, 80 L.Ed.1288 (1936) and 304 U.S. 1, 20-21, 58 S. Ct. 773, 82 L.Ed. 1129 (1938). Informal procedures are appropriate only for agency acts that do not depend on the resolution of factual disputes. United States v. Florida East Coast Ry., Co., 410 U.S. 224, 246, 93 S. Ct. 810, 35 L.Ed.2d 223 (1973). The distinction turns not on language, but on what the agency is doing. If it is weighing evidence, making determinations from contested facts and deciding the rights of individuals, special procedural protections are required. Marathon Oil, 564 F.2d at 1263. Defendants told the Court that was what they would do:

"*** the Corps is still developing the factual record upon which to base its eventual final agency action. Curtis Declaration 9. It is appropriate for that factual development to occur in the administrative context whereby the Corps can receive and evaluate all pertinent information, creating a comprehensive administrative record upon which to base its decision." Defendants' Response to Motion for Access to Study (dkt. No. 88) at 11.

Defendants suggest that the remand decision's use of the phrase "arbitrary and capricious" gave them leave to proceed by informal adjudication and avoid rigorous review by the Court. (20) The Court's remand was more exacting. It held that defendants' first "decision making procedure" was flawed, Bonnichsen, 969 F. Supp. at 645, and instructed them to "fully reopen this matter, to gather additional evidence, to take a fresh look at the legal issues involved, and to eventually reach a decision that is based upon all of the evidence, that applies the relevant legal standards, and that provides a clear statement of what the agency has decided, and the reasons for that decision." Id.

B. Defendants Cannot Justify Their Ex Parte Contacts.

Even when a formal hearing before an administrative law judge is not required, agencies may not use procedures that are unfair. United States Lines, Inc. v Federal Maritime Commission, 584 F.2d 519, 526, 537 (D.C. Cir. 1978). Ex parte contacts are a fatal flaw even in informal adjudication because "their substance and existence serve effectively to deprive the public of the right to participate meaningfully in the decisionmaking process" and they "foreclose effective judicial review." United States Lines, 584 F.2d at 540-41 (applying ex parte contact ban to informal adjudication). See also Sierra Club v. Costle, 657 F.2d 298, 400 (D.C. Cir. 1981) (basic notions of due process justify ban on ex parte contacts). Defendants do not dispute that ex parte contacts occurred here.

Plaintiffs' Memorandum discussed the impropriety of litigation counsel providing legal advice to the decisionmakers. Plaintiffs' Memorandum at 17-19. Defendants do not disagree that these contacts occurred or that the decisionmakers sought and obtained legal advice from litigation counsel. They do not discuss any of the decisions and authorities plaintiffs cited on this point.

Defendants respond to the impropriety of the contacts with the White House by the claim that the executive branch is "unitary." They ignore Portland Audubon Soc. v. Endangered Species Committee, 984 F.2d 1534 (9th Cir. 1993), and United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499, 98 L.Ed. 681 (1954) (on which the Ninth Circuit relied). Those cases rejected the concept of a "unitary" executive branch. "The President and his aides * * * are 'outside the agency' for the purposes of the ex parte communications ban." Portland Audubon 984 F.2d at 1545. Nor can the White House meetings be excused as merely status reports. Defendants' Memorandum in Support of Motion to Strike (dkt. No. 432) at 10. What actually occurred at many of these meetings is unknown since they are not reflected in minutes or notes. The few meetings that were documented show more than mere status reports. See Plaintiffs' Memorandum at Appendix A.2. For example, ordering destruction of the discovery site is not a status report. See Plaintiffs' Memorandum at 35.

Defendants admit that Coalition members had extensive direct contacts with the decisionmakers. Defendants' Memorandum at 23. They do not deny that Dr. McManamon coached Coalition members on how to present their claims more effectively, or his desire to influence scholarly debate. Plaintiffs' Memorandum at 31, n.48. Nor do they deny that no minutes or notes were made of many contacts with the Coalition, or that if they were, those minutes or notes are not in the record. See Plaintiffs' Memorandum at 14-16 and Appendix A.1 (summarizing more than 50 such contacts).

Defendants cite 43 CFR §§ 10.4 and 10.5 and argue that all of the contacts listed in plaintiffs' memorandum "were part of the required consultation process * * *." Those regulations do not authorize the kind of "consultation" the agencies conducted here. NAGPRA expressly provides that "nothing in this chapter shall be construed to * * * limit any procedural or substantive right which may otherwise be secured to individuals." 25 USC § 3009(4). Among the rights secured to individuals are those provided in the APA. Since an agency may not adopt a regulation that is "out of harmony" with the statute (Plaintiffs' Memorandum at 4-5), the regulations cited by defendants (§ 10.4 merely references § 10.5) are proper only if they preserve the procedural protections of the APA.(21)

The reference in § 10.5(b) to the "responsible federal agency official" cannot be reconciled to the APA if it means a decisionmaker. Someone else must conduct the consultation, or the procedure and the regulation will be invalid under the APA. Likewise, consultation may not be done secretly or concealed from the record. Otherwise, the procedure prevents judicial review. When consultation occurs, other affected parties must be included so they can provide rebuttal evidence. Otherwise, the process violates the APA. Moreover, nothing in either the law or the regulations authorizes coaching and manipulating the record. Such actions are inherently contrary to law.

C. Defendants Deprived Plaintiffs Of Other Protections Mandated By Due Process.

Defendants were not without guidance from case law as to the procedural protections required here. There is no evidence they even considered the question.

"The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be 'condemned to suffer grievous loss.'" Goldberg v. Kelly, 397 U.S. 254, 262-63, 90 S. Ct. 1011, 25 L.Ed.2d 287 (1970). (22) That case identifies ten components to due process: timely and adequate notice, confrontation of adverse witnesses, oral presentation of evidence and arguments, cross examination, disclosure of opposing evidence, the right to counsel, a determination on the record, a statement of reasons and evidence relied upon, and an impartial decisionmaker. Greater deprivations require greater protections.

Here, the res, the skeleton may be irrevocably lost not just to the eight plaintiffs, but to all who wish they could study and learn from it.(23) It cannot be replaced. The controversy is highly polarized, highly public, and concededly "high profile." (24) It is marred by admissions that Dr. McManamon sought to use his public position to influence scholarly debate, and by government statements indicating that the result here was preordained. It is a controversy with strong precedential value which may set a standard for treatment of other ancient remains. Plaintiffs have raised fundamental constitutional issues. If defendants did not care about plaintiffs' rights, they should at least have considered the Court's expressed concerns and public perceptions of the fairness (or unfairness) of government conduct.

The impartiality and independence of decisionmakers are essential components of due process.(25) So too is the right to adversarial response or comment: "Our cases make clear the importance of such [adversarial] comment in allowing a court to review the action taken by the agency, as well as in facilitating informed agency decisionmaking itself." United States Lines, 584 F.2d at 534. Adversarial comment is foreclosed when government hides information as defendants did here by repeatedly refusing plaintiffs' requests to know what was under consideration. See Plaintiffs' Memorandum at 19-21, 33-34.

Even when informal agency proceedings are permitted, all supporting data must be available for court review. So-called "blind references," like the failure of Dr. Boxberger to identify the information he gleaned in telephone calls with the Coalition, or the missing notes of government meetings, prevent proper review:

"[W]e simply cannot determine whether the final agency decision reflects the rational outcome of the agency's consideration of all relevant factors when we have no idea what factors or data were in fact considered by the agency. * * * We cannot, in other words, determine whether the agency action is arbitrary and capricious." United States Lines, 584 F.2d at 533.

D. There Is No Evidence Defendants Were Concerned About Plaintiffs' Views.

Defendants argue that plaintiffs had every opportunity to submit data for consideration, citing what appears to be an impressive array of contacts with plaintiffs. Defendants' Memorandum at 24-26. Nearly all of these examples consist of materials the plaintiffs collected and submitted on their own, with neither request nor acknowledgement from defendants. Some are examples of "opportunities" that occurred only as a result of Court order. Some are plainly staged: for example, defendants invited Dr. Haynes to join their study team, knowing that he is a geologist, not an anthropologist or osteologist (26).

Appendix D is a list of the contacts with plaintiffs initiated by defendants. The collection inventory was conducted only because the Court ordered it. Three of the four telephone conferences were done under Court instruction; the fourth was only about study of the skeleton, not about the subjects of the Determinations. Numerous other contacts not shown in Appendix D were initiated by plaintiffs, but were rebuffed, and the materials submitted by plaintiffs were ignored in defendants' determinations.

Defendants offer no defense of the way they ignored plaintiffs' requests for guidance on the issues under consideration so they could submit appropriate information. See Plaintiffs' Memorandum at 19-20. Until the process was over and the administrative record was filed, defendants left plaintiffs to guess at what the decisionmakers might be considering. Had there been any semblance of a dialogue, plaintiffs could have educated defendants either with more data, or with a more refined and focused discussion of the materials under consideration.(27) For example, Dr. Bonnichsen questions whether the projectile point in the skeleton's hip is properly classified as a Cascade Point. See Bonnichsen affidavit. Other unresolved questions were suggested by his review of images generated from the CT scan electronic data which defendants did not provide until February 2001, and then only on Court order. Id. Dr. Owsley's review of images from that same data raises other questions. See Owsley affidavit. Defendants' argument that plaintiffs had a full and fair opportunity to participate in the administrative process is not credible.


A. Defendants Do Not Apply The Proper Standard Of Analysis For Laws That Implicate Constitutional Issues.

Plaintiffs have raised serious constitutional concerns concerning the First Amendment implications of this case. Defendants approach these issues backwards by arguing interpretations of NAGPRA that squarely present constitutional issues. It is "beyond debate" that statutes must be construed to avoid even approaching serious constitutional problems. "[T]he Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575, 108 S. Ct. 1392, 99 L.Ed.2d 645 (1988); See Crowell v. Benson, 285 U.S. 22, 62, 52 S. Ct. 285, 76 L.Ed. 598 (1932) ("When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided")(28).

Thus, the first step in any analysis is to seek a construction of a statute that does not implicate constitutional questions. Here the court need not move beyond the that step, because it will not find any "clearly expressed" indication that Congress intended religion to be considered or speech to be affected. Defendants concede that NAGPRA makes no reference to religion. Defendants' Memorandum at 28. They do not dispute that NAGPRA does not direct that religious stories be considered in cultural affiliation determinations. Without such an affirmative intent, NAGPRA cannot be construed to reach these constitutional issues.

The same is true concerning plaintiffs' study claims. Defendants concede that NAGPRA is silent on the question of study of inadvertently discovered remains. Defendants' Memorandum at 32. Since there is no "affirmative intention" of Congress to ban study, and because serious constitutional questions would otherwise be created, NAGPRA must be construed to avoid those questions.

B. Defendants' Offer Insufficient Excuses for Their Establishment Clause Violations.

Defendants justify their use of Coalition oral tradition by arguing that their purpose was not to "evaluate its religious content" but only to test its "credibility and relevancy." Defendants' Memorandum at 30. Credibility and relevance cannot be evaluated without content. "Credibility" is a synonym for "truth," and whether a statement is credible or true depends upon what it says.(29) Nor can defendants legitimately dispute that the origin accounts used by Dr. Boxberger in his report are religious in nature.(30) Those accounts explain how the world and the ancestors of the Coalition's members were created. They are religious teachings, and their credibility and relevance cannot be separated from their content.

Defendants also excuse their inquiries into religious oral tradition by explaining they used "science-based methodology."(31) Regardless of the methodology, an inquiry that results in the acceptance of the credibility of religious doctrine is an impermissible incursion into theological matters. See Plaintiffs' Memorandum at 26. (32) Despite defendants' litigation position, however, there is no evidence that Dr. Boxberger or Secretary Babbitt applied any of the analytical tests described in the materials provided by plaintiffs. See ER 143-45 (Simic´). Their willingness to accept the truth of religious beliefs led to illogical conclusions not consistent with accepted scientific standards. They assume, for example, that a reference in an oral tradition to past geologic events (floods, ice, volcanic eruptions) must necessarily date from the end of the Pleistocene (more than 10,000 years ago), although those references could as easily be to more recent events (SER 59) or even be extrapolations from geologic processes that were familiar to the creators and transmitters of the accounts. Since these latter possibilities are equally plausible, it cannot be said that oral traditions prove cultural affiliation by a preponderance of the evidence. Similarly, some stories can be interpreted only as analogies designed to teach a moral or theological lesson.(33) The Secretary's uncritical acceptance of such moral or theological lessons crosses the constitutional line.

The Secretary and Dr. Boxberger make other assumptions that are not consistent with logic or accepted scientific practices. They assume, for example, that possible references to geologic events are matters that could only have occurred in the Kennewick area, disregarding the possibility that they could have occurred elsewhere. They also assume that such events must have been witnessed by the ancestors of the Coalition members, when it is equally plausible that the Coalition's ancestors may have borrowed elements of their origin accounts from other peoples. With such uncertainties, any conclusion in favor of cultural affiliation was pure speculation. Defendants' claims to have followed scientific methodology is litigation posture rather than a fair depiction of what happened.

The Secretary's determination shows inescapably that he took one ambiguous element in the Coalition's origin accounts (i.e., possible references to past geologic events) as a basis for accepting the literal truth of the rest of those accounts.(34) From there he concluded that because the accounts are true, they must relate to real events and the witnesses to these events must be ancestral to the Coalition. Defendants were obligated to carry out an objective, rational inquiry; they investigated theology instead.(35)

Defendants complain that if origin accounts cannot be used to prove the truth of the religious stories they convey, it will be more difficult for Native Americans to establish their claims. NAGPRA does not permit defendants to resort to religious beliefs. Nor does the Constitution. Moreover, Congress established a standard of proof in NAGPRA (i.e., preponderance of the evidence). Defendants may not resort to something lesser because Congress' standard is too difficult.

Defendants' reliance on three decisions by the Court of Claims does not assist this analysis. Religious beliefs were not even considered in Pueblo De Zia v. United States, 165 Ct. Cl. 501 (1964). Confederated Tribes of the Warm Springs Reservation v. United States, 177 Ct. Cl. 184, (1966) merely looked to the similarity of religious beliefs as one indicator of cultural unity within a group. The truth of those beliefs was not considered. In Zuni Tribe v. United States, 12 Cl. Ct. 607 (1987), religion was only one of 88 different elements considered to determine aboriginal title. In none of these cases was the court presented with the constitutional issues raised here, and consequently they do not offer precedent of any kind. Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S. Ct. 1710, 123 L.Ed.2d 353 (1993) (if a decision does not "squarely addres[s] [an] issue," it does not affect later decisions); United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38, 73 S. Ct. 67, 97 L.Ed. 54 (1952); Webster v. Fall, 266 U.S. 507, 511, 45 S. Ct. 148, 69 L.Ed. 411 (1925) ("Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not considered *** to constitute precedents").

Defendants do not dispute that they allowed Coalition members to veto study requests for religious reasons, both as to study of the skeleton and with respect to investigation of the discovery site.(36) They do not dispute that their consultations included prayers. They do not discuss the implications of the authorities plaintiffs cited.

Defendants cite an assortment of cases for the proposition that their use of religion was proper because of the "unique relationship" between the federal government and Indian tribes, and because governmental preferences for Indians are said to be subject to a "lesser standard" of review. Defendants' Memorandum at 30, n.30. Three of the cases they cite are not about religion at all.(37) Two discuss whether the government can permit Indians to use items (peyote and eagle feathers) for religious practices that non-Indians are not free to use.(38) Such considerations do not apply here because here there is no "clear indication" that Congress intended NAGPRA to open the door to a consideration of credibility of religious doctrine. Defendants have not cited one case holding that the constitutional rights of third parties can be infringed to further Native American interests, or that Congress intended NAGPRA to address religion.

C. Defendants' Arguments On Study Are Still Insufficient.

Defendants have never deviated from the theme that there is no right of access to "all government-held information" or "all Native American remains," even after the Court disposed of that issue on remand. The question is not whether plaintiffs may study every skeleton in government collections, but whether they may study one extraordinary skeleton that is of critical import for scholarship and education. NAGPRA does not, and cannot, prohibit what they are requesting.

The First Amendment protects more than speech and extends to many forms of expression and sources of information including armbands,(39) parades,(40) advertising,(41) flag burning,(42) dancing,(43) television programs,(44) sit-ins,(45) drive-in-movies,(46) handbills,(47) and drug prices.(48) The overarching principle in these cases is that government may not unreasonably interfere with the flow of information. Defendants themselves concede that "[w]hile the information is there, a person has a right to receive it." SER 16, COE 7701.

Defendants do not dispute Kennewick Man's importance as a source of information about early New World peoples and human colonization of the Americas.(49) In that regard, it is unique because of its age and completeness. SER 94, DOI 01560; SER 109, DOI 04402. Early New World skeletons are so rare that each is irreplaceable. SER 104, DOI 04263; SER 96, DOI 01573; SER 95, DOI 01562. The information that can be learned from a skeleton is not created by the scientists who study it. Instead, such information is inherent in the skeleton,(50) and scientists merely collect and interpret that information.(51) In all essential respects, Kennewick Man's skeleton is like a book or a map or an x-ray, and like those objects its study cannot be constitutionally closed to qualified investigators.

Defendants' promise to share their study data is not an adequate substitute for study of the skeleton by plaintiffs themselves. See Giebel v. Sylvester, 244 F.3d at 1187-88 (availability of alternative forum does not mitigate denial of a forum to which plaintiff was entitled). Not all of the studies proposed by plaintiffs have been performed. See, e.g., SER 110, DOI 04403 (plant phytolith studies). Some that have been carried out were not as comprehensive as they should be.(52) Dr. Powell's cranial, dental and postcranial measurements must be verified to determine if they are accurate.(53) Some doubts exist whether they are. SER 165 (Owsley at 4). Dr. Powell's other observations also need to be checked by other observers. SER 105-06, DOI 04265-66; SER 138 (Steele). Important questions about the skeleton and its taphonomic history remain unresolved. SER 111-12, DOI 04927-28, SER 163-64 (Owsley at 2, 3); SER 155 (Bonnichsen at 2). Dr. Powell's interpretations of the skeleton's population affinities were made without the benefit of plaintiffs' databases. SER 107, DOI 04272; SER 103, DOI 04260. His reconstruction of the skull may not be accurate and must be checked.(54) The existing photographic record is inadequate and must be redone. SER 166-67 (Owsley at 5-6). In addition, personal observation of the bones themselves is an important part of a scientist's assessment of a skeleton.(55) SER 12, COE 7531.

Defendants also contend, rather perversely, that they have no obligation to make the skeleton available to plaintiffs because it is not the property of the United States. That claim is inconsistent with defendants' earlier statements (SER 134a, Tr. of Sept. 14, 1999 at 36), with the position of other federal agencies (BLM in Spirit Cave), and with other federal laws. See, e.g., ARPA § 470cc(b)(3) (items found on federal land "remain the property of the United States"). Nor is it consistent with government objectives in other areas. Defendants' property theory would mean that looters of Native American graves on federal land could not be prosecuted for theft of government property, and prosecutions under ARPA and the Antiquities Act would be jeopardized. Such a Congressional intent cannot be presumed.(56) Moreover, if the skeleton is not Native American, then defendants' theory is wholly inapplicable, and they cite no basis for denying study in that event.

Defendants continue to argue that plaintiffs' requests can be denied because NAGPRA prohibits "unfettered" study of skeletons found on federal land.(57) Plaintiffs' requested studies are not "unfettered." They are conservative, well conceived, and consistent with accepted standards (such as Buikatra and Ubelaker) (58). They are proposed by eminently qualified experts, (59) and would be completed more expeditiously and with less impact on the skeleton than defendants' studies turned out to be.

Defendants' efforts to block plaintiffs' study requests under the rubric of the statute's "purposes" are not consistent with their concession that NAGPRA is silent on the question of study in circumstances such as these.(60) Nor are they consistent with logic (61) or the express provisions of the statute. Congress required tribal consent for study of discoveries that occur on tribal land, but did not impose a similar requirement for discoveries on federal land. See U.S.C. § 3002(c)(2). Instead, for the latter situations, Congress required compliance with ARPA (25 U.S.C. § 3002(c)(1)) which mandates the kinds of study proposed by plaintiffs. SER 91-92, DOI 03575, 03578 (McManamon). Nor does the statute's authoritative legislative history support defendants' anti-study arguments. Only one relevant comment was made in either the House or Senate Reports, and that was the observation that "Native American witnesses have indicated that they do not object to the study of human remains when there is a specific purpose to the study and a definitive time period for the study." SER 144-45 (Senate Report). Evidence is lacking of any "clearly expressed" Congressional intent to impose the kind of study restrictions proposed by defendants. (62)

Federal agencies may not interpret the "purpose" of a statute to impose requirements or qualifications not expressly authorized by the statute's words. See Plaintiffs' Memorandum at 4-5. Nor can they construe a statute to create substantial constitutional questions. See DeBartolo, 485 U.S. at 575. As the Ninth Circuit phrased the rule: "if Congress means to push the Constitutional envelope, it must do so expressly." Williams v. Babbitt, 115 F.3d 657, 662 (9th Cir. 1997), cert. den., 523 U.S. 1117 (1998). When the supposed restrictions of the law collide with constitutional protections, courts must return to the "isolated evils" that engaged Congress to pass the legislation. DeBartolo, 485 U.S. at 575; NLRB v. Fruit Packers, 377 U.S. 58, 63, 84 S. Ct. 1063, 12 L.Ed.2d 129 (1964) (Tree Fruits). The "isolated evils" that engaged Congress in 1990 when it passed NAGPRA did not include study of ancient remains.

Defendants argue also that they did not create a limited public forum but "simply respond[ed] to the public's demand for information on the remains" and that their only "speech" was the government speaking as the government. Defendants' Memorandum at 33, n.34. Even if that were true, it would not justify withholding this skeleton from legitimate scientific study. Moreover, they did much more than they admit. They permitted the Burke Museum and their study team members to take government supported research out into the public domain, spin it and transmit to others the underlying scientific data withheld from plaintiffs.(63) Defendants do not dispute that they opened debate about the skeleton to a segment of the scientific community, while excluding plaintiffs who hold views contrary to defendants' preferred version of pre-history. More happened here than just government speaking as government. See Giebel v. Sylvester, 244 F.3d at 1188-89 (viewpoint suppression through removal of announcements for a public conference).


(18) He never discusses, let alone finds, that any of the four tribes or the Wanapum band is separately, culturally affiliated to the skeleton. Instead he speaks consistently of "the present-day Indian tribe claimants" and the "two groups" (referring to Kennewick Man's supposed group and the group of claimants). SER 32, DOI 10015.

(19) Defendants also cite six reports (Boxberger, Hunn, Uebelacker, Moura, and the Colville and Umatilla submissions) as demonstrating that "DOI found" that each member of the Coalition was separately culturally affiliated to the skeleton. Defendants' Memorandum at 22, n.21. None of those reports is a finding, and the Secretary's letter does not mention any of them. In any event, not one of them establishes cultural affiliation to an individual tribe apart from the other members of the Coalition. Nothing was submitted by the Nez Perce. Nor can any significance be attached to the fact that the agencies wrote letters to individual tribes during the process. They are not findings by the Secretary.

(20) "Arbitrary and capricious" and "substantial evidence" are not two different standards of review in terms of the level of deference or the rigor of review. The latter is merely one subset of the former. Association of Data Processing Service Organizations Inc., v. Board of Governors of the Federal Reserve, 745 F.2d 677, 683-84 (D.C. Cir. 1984) (Scalia, J.). The Court's decision also paraphrased the "substantial evidence" standard of review: "On remand, the Corps must critically examine all of the evidence in the record as a whole, and make specific findings that are supported by reliable evidence." Bonnichsen, 969 F. Supp. 652, n.26.

(21) It should be noted that NAGPRA does not authorize or require "consultation" to determine cultural affiliation in cases such as this. See 25 USC § 3002. The statute mentions "consultation" only in limited situations: adoption of regulations under § 3002(b); disposition of unclaimed objects and remains (§ 3002(b); intentional excavations (§ 3002(c)); museum inventories (§ 3003); review committee activities (§ 3006). In contrast Congress' reference in § 3002(a)(2) to "preponderance of the evidence" reflects an expectation that adjudication of some kind would be required to determine cultural affiliation (at least in cases of a dispute). In any event, nothing in § 3002 indicates a Congressional intent to dispense with the procedural safeguards of the APA.

(22) See also Wolff v. McDonnell, 418 U.S. at 560.

(23) Among other things, defendants' interpretation of the term Native American would mean that Kennewick Man could eventually be subject to reburial even if it is never culturally affiliated. See NAGPRA Review Committee's proposed recommendations for regulations on the disposition of culturally unaffiliated remains. SER 150.

(24) See Defendants' Memorandum in Support of Motion to Strike, dkt. No. 432 at 10.

(25) It is important "to maximize the independence of deciders within each agency by insulating them from contact with enforcement and investigatory personnel. If the appearance and reality of bias is minimized, not only will two of the essential measures of good procedure -- satisfaction and fairness -- be enhanced, but in the long run the agency can maximize the efficiency measures as well. That is because, as Judge Friendly suggests, a more impartial tribunal may reduce the need (and perhaps the demand) for additional procedural ingredients such as confrontation, a transcript, and oral presentation." Verkuil, 43 U. Chi. Rev. at 751.

(26) Defendants contacted Dr. Haynes without the knowledge or consent of his counsel. SER 85 (Schneider 2/18/99); SER 90 (Barran 8/27/99).

(27) By way of example, defendants assert that plaintiffs do not dispute that the Coalition claimants have "always" lived near Columbia Park. Defendants' Memorandum at 16. Plaintiffs do dispute that, and defendants' contrary assertion shows that they likely never read plaintiffs' submissions. See, for example, the items listed in Appendix C. Most of these raise, discuss, or advert to that question. Defendants ignore these materials as if they did not exist. Had plaintiffs been told of the oral traditions cited by the Coalition to support its claim, they could have supplied, amplified and explained issues (such as the identification of past geologic events) that make that claim implausible.

(28) NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500, 99 S. Ct. 1313, 59 L.Ed.2d 533 (1979) ("an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available"); Machinists v. Street, 367 U.S. 740, 81 S. Ct. 1784, 6 L.Ed.2d 1141 (1961) (construing Railway Labor Act to avoid serious doubt of the Act's constitutionality); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22, 83 S. Ct. 671, 9 L.Ed.2d 547 (1963) (refusing to sanction extension of NLRB jurisdiction where it would raise separation of powers questions and requiring proof of "the affirmative intention of the Congress clearly expressed").

(29) See Webster's New Collegiate Dictionary, G.&C. Merriam Co., 1981 (credible: "offering reasonable grounds for being believed").

(30) Dr. Boxberger and Coalition representatives repeatedly confirmed that religious beliefs and moral lessons are integral to the content of the oral traditions cited by Coalition members to support their claim to the skeleton. See Plaintiffs' Memorandum at 25.

(31) Defendants also refer to their "humanistic and qualitative methodologies." Defendants' Memorandum at 30. Since those terms are not defined in their memorandum or in the cited references, it is not clear what they mean or what they might have contributed to the inquiry.

(32) Defendants argue that plaintiffs are inconsistent in their position on the use of religion. See Defendants' Memorandum at 27. They mistake the discussion in Plaintiffs' Memorandum at 11, which did not involve any inquiry into the truth of religion. Examining the veracity of religious doctrine as defendants did here violates the Establishment Clause because it excessively entangles government with religion United States v. Ballard, 322 U.S. 78, 86, 64 S. Ct. 882, 88 L.Ed.2d 1148 (1944). Compare Protos v. Volkwagen of America, 797 F.2d 129, 136, 137 (3rd Cir. 1986), cert. den., 479 U.S. 972, 107 S. Ct. 474, 93 L.Ed.2d 418 (1986) (Title VII religious accommodation issues do not violate constitutional constraints because government does not "inquire into the verity of a religious belief"). It is one thing to compare two cultures in terms of their shared religious beliefs and customs to see if they are the same, but quite a different thing to use a group's religious beliefs to prove that they are true. Defendants do the latter; plaintiffs discussed only the former.

(33) For example, Dr. Boxberger cites an account which attributes cataclysmic floods to the action of giant beavers. See ER 187. Such accounts cannot be reconciled to existing knowledge of natural processes. Origin accounts are theological or metaphysical explanations for the creation of the world by supernatural beings, not scientific treaties, and cannot be interpreted literally. See ER 129 (Archambault); ER 140 (Simic´).

(34) In doing so, he disregarded all elements of the origin accounts that are incompatible with the Coalition's claim (such as the nomadic people who overran the Palouse country but were later destroyed by lava, or the Stick People, ER 133, 190).

(35) Defendants' use of the Coalition's oral traditions were constitutionally flawed for another reason. Defendants assumed that the origin accounts they cited are genuine traditions of the Coalition's members. That may or may not be true. To assume that they are involves an impermissible determination of what is the accepted tenets of a religious belief system. See Plaintiffs' Memorandum at 26.

(36) See Plaintiffs' Memorandum at 27-28. See also SER 141 ("YN traditional religious law dictates that the remains must be immediately reburied in the earth for all eternity.") (Yakama Motion to Intervene); SER 124, DOI 08611("One tenet of our beliefs is the sanctity of the spirit of the deceased. Those who have passed on are not to be disturbed.") (Colville); SER 15, COE 7653) ("The scientific studies on Native American remains. . .is a violation of the religious and cultural beliefs of myself, my family and members of the Walla Walla Tribe.") (Umatilla); SER 14, COE 7651 ("Scientific testing of the remains of our Native American ancestors is contrary to the Washat religious beliefs and traditions and must not be permitted") (Umatilla).

(37) Morton v. Mancari, 417 U.S. 535, 94 S. Ct. 2474, 41 L.Ed.2d 290 (1974), was about employment preferences and not religion. Alaska Chapter v. Pierce, 694 F.2d 1162 (9th Cir. 1982), was about construction contracts. Washington v. Yakima Indian Nation, 439 U.S. 463, 99 S. Ct. 740, 58 L.Ed.2d 740 (1979), was about criminal jurisdiction

(38) Rupert v. Director, U.S. Fish and Wildlife Service, 957 F.2d 32 (1st Cir. 1992); Peyote Way Church of God, Inc. v. Thornburgh, 992 F.2d 1210 (5th Cir. 1991).

(39) Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L.Ed.2d 731 (1969).

(40) Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 115 S. Ct. 2338, 132 L.Ed.2d 487 (1995).

(41) Edenfield v. Fane, 507 U.S. 761, 113 S. Ct. 1792, 123 L.Ed.2d 541 (1993

(42) United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L.Ed.2d 287 (1991).

(43) Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S. Ct. 2456, 115 L.Ed. 504 (1991).

(44) United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S. Ct. 1878, 146 L.Ed.2d 865 (2000).

(45) Brown v. Louisiana, 383 U.S. 131, 86 S. Ct. 719, 15 L.Ed.2d 637 (1966).

(46) Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S. Ct. 2268, 45 L.Ed.2d 125 (1975).

(47) Giebel v. Sylvester, 244 F.3d 1182 (9th Cir. 2001).

(48) Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S. Ct. 1817, 48 L.Ed.2d 346 (1976).

(49) Defendants concede the value of skeletal studies. See SER 118, DOI 05857 (uses of metric and nonmetric data) (McManamon); SER 119, DOI 07584 ("Independent of the Kennewick case, further investigation of the skeletal populations probably would be a useful undertaking in itselfve [sic]." (McManamon e-mail).

(50) It is thus misleading to compare the skeleton to all government-owned property. Many objects have value only (or primarily) because of their utilitarian functions, not as sources of information. As such, they present no obvious First Amendment issues.

(51) This information exists wholly apart from the government. It was not created by the government, and does not relate to the government's internal operations or activities (other than the accuracy of its NAGPRA decisions).

(52) SER 114-16, DOI 04947, 48, 49-50 (taphonomic analysis); SER 102, DOI 04259 (nonmetric traits). Dr. McManamon himself concedes that "a total taphonomic picture is a good idea." SER 121, DOI 08353.

(53) SER 139 (Owsley.); SER 138 (Steele); SER 92, DOI 03578 (checking for measurement error is "essential" for careful, detailed comparative analysis) (McManamon).

54 SER 164 (Owsley at 3); SER 108, DOI 04279; SER 142 ("An accurate reconstruction is difficult *.*.*.") (Defs' 7th Quarterly Status Report, Attachment D at 4); SER 117, DOI 05677 (misalignment in restored skull).

55 If the Court has any questions about the studies plaintiffs wish to conduct and why the government studies are an inadequate substitute, plaintiffs will be available to the Court for testimony on that issue.

(56) Because a court must interpret laws so as to harmonize them to the greatest extent possible, Morton v. Mancari, 417 U.S. at 551, a more reasonable interpretation of Congress' intent is that skeletal remains found on federal land continue to be the property of the United States until: (a) there has been a determination of cultural affiliation in favor of a qualified claimant (contrary to what has occurred here); (b) the claimant has accepted that determination and whatever responsibility it entails; and (c) the allowable period for challenges to the determination has passed. Defendants have pointed to no language in NAGPRA contrary to this.

(57) Like defendants' property theory, this argument does not apply if the skeleton is not Native American. In addition, defendants have not explained how NAGPRA could bar study of the skeleton before it was declared to be Native American.

(58) Cited by defendants as an authoritative guide on study and documentation of skeletal remains. See SER 93, DOI 03579. Plaintiff Owsley was one author of that guide.

(59) Plaintiffs are not just "any member of the public" as defendants seem to imply. Defendants' Memorandum at 33, 34. Plaintiffs are experts in their field, and defendants have never disputed their scientific qualifications.

(60) SER 134b, Tr., September 14, 1999 at 41 ("And NAGPRA doesn't really address study. It is not a statute that is directed to study.") The Umatilla have said the same. See SER 78a, DOI 06986 ("NAGPRA does not specifically address scientific testing of inadvertently discovered human remains") (letter 2/11/00).

(61) Defendants would exempt themselves from such restrictions. Only independent scientists such as plaintiffs would be prohibited from study, while government agencies would be free to conduct whatever studies they consider "good science." ER 210 (McManamon statement). The Coalition's opposition to plaintiffs' study requests did not extend to defendant's noninvasive studies. See SER 10, COE 6992 (Nez Perce); SER 11, COE 7080 (Umatilla). The Colville even advocated DNA testing. SER 98, DOI 02719.

(62) The scientific study provision found in 25 U.S.C. § 3005(b) does not compel a different conclusion. That provision applies only to existing collections. The problems and concerns involved in those situations are much different from the circumstances presented by new discoveries. In addition, section 3005(b) merely provides a mechanism for delaying repatriation of items that have been affiliated. It does not preclude other studies that have no effect on the timing of a repatriation.

(63) Defendants retained the right to "coordinate" all public statements by the Burke Museum (SER 4, COE 5221), and they imposed only limited confidentiality restrictions on their study team members, but permitted them to use the information publicly. SER 99, DOI 04183 (Rose); SER 101, DOI 04189 (Powell).

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