Plaintiffs' Reply Memorandum (Part 3)
Plaintiffs' Reply Brief
VI. DEFENDANTS VIOLATED NHPA .
Defendants do not dispute that plaintiffs were "interested parties" within the meaning of the National Historic Preservation Act ("NHPA"), or that plaintiffs were entitled to receive information and express their views about the site cover-up project. Defendants' Memorandum at 37. Defendants' only defense is that plaintiffs' views were considered during the Section 106 process. That defense is not supported by the record.
Defendants cite no documents showing when, how or by whom plaintiffs' views were considered. On one occasion Lt. Col. Curtis referred to letters from Dr. Stafford, but only to state that he would "not refute Dr. Stafford's objections point by point in this letter." ER 282. Other letters describing plaintiffs' objections in detail were not even acknowledged.(64) Conclusionary statements are not sufficient to establish that plaintiffs' objections and concerns were appropriately considered.(65) In any event, proper consideration could not have been given to plaintiffs' views, since plaintiffs were not informed of the new, expanded project until almost two months after defendants decided to proceed with it. See ER 306, 308. (66) The process mandated by Congress requires that potentially relevant information be fairly considered before agency decisions are reached. See Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000).
Without citing any authority, defendants argue that plaintiffs' NHPA claims are "untimely" because they were not raised until three years after the project was completed. NHPA does not have an explicit or implicit statute of limitations. Tyler v. Cisneros, 136 F.3d 603, 607-08 (9th Cir. 1998). Moreover, as defendants know, plaintiffs could not assert additional claims because of the stay that was imposed in June 1997, months before the cover up. Plaintiffs did, however, raise their objections before the Court. See Defendants' Memorandum at 40. Defendants cannot claim now that they were not on notice of plaintiffs' opposition to the project.
Defendants' argument that plaintiffs should have sought an injunction misses the mark. Defendants deliberately avoided making their intentions clear to plaintiffs or the public. As late as five days before boulders started to fall on the site, defendants publicly announced that they were deferring to Congress' intent and suspending work on their project indefinitely. SER 153 (Meier). Had they lived up to their word, an act of Congress would have prevented destruction of the site. Instead, they did an about face as soon as Congress went on recess, and then congratulated themselves on their quick response. SER 17, COE S-278. Lt. General Ballard predicted that "THE DIN WILL DIE OUT VERY QUICKLY." Id. (capitalized in original).(67)
Moreover, defendants' arguments ignore the fact that they acted during the pendency of litigation in the face of an order directing them to preserve the scientific value of the remains. Bone fragments appearing to be from the Kennewick Man skeleton were still being found at the site even on the eve of its burial. See SER 17c, COE S-346. Plaintiffs reminded defendants of the Court's order to preserve the scientific value of the remains and expressed concern that pieces of the skeleton were still at the site. See SER 17a, COE S-293. Defendants did not respond.
The fact that the site has been buried does not mean that relief is impossible. Among other things, plaintiffs seek declaratory relief and defendants may still be ordered to investigate how they might correct the consequences of their precipitous decisions. See Desert Citizens v. Bisson, 231 F.3d 1172, 1187 (9th Cir. 2000) (party acts at its peril in acting knowing that legal challenges are pending).
Defendants make no attempt to address the other deficiencies in their process. They cite no evidence of meaningful consideration to alternative methods for stabilizing the site, to the potential adverse effects of their project, or to methods for mitigating those effects, as required by the WES guidelines. See Plaintiffs' Memorandum at 35-37. Nor have they defended their failure to monitor the site or to provide suitable access for future study. No effort is made to even show that immediate stabilization of the site was necessary.
VII. DEFENDANTS' CURATION ARGUMENTS ARE NOT CREDIBLE.
Defendants' excuse for their failure to adopt a long-term preservation plan is that plaintiffs misunderstand the term. They assert "it would have been foolhardy to develop a long-term preservation plan" in the present situation. Defendants' Memorandum at 35, 36. Three years ago defendants assured the Court that they would adopt a long-term preservation plan as soon as the skeleton was acclimatized to the environment at the Burke Museum, no later than the end of March 1999. See Plaintiffs' Memorandum at 37; SER 97, DOI 03672. Without telling the Court or plaintiffs they had changed their minds, (68) defendants decided that they would not carry out a representation made to the Court. They did not admit that they had broken their promise until pressed by plaintiffs. ER 405.
Defendants also claim that 25% to 75% is an acceptable range for changes in relative humidity (RH). See SER 142a (Trimble affidavit). Defendants and Dr. Trimble made different representations to the Court in 1998. See Plaintiffs' Memorandum at 37 (RH would stay between 40% and 45%).(69) Dr. Trimble also states that the collection's RH has fallen below 25% only once per year and then by only fractions of a percent.(70) That claim is something he cannot know to be true. The datalogger model used by defendants is capable of measuring RH only above 25% and then only with an accuracy of plus or minus 5%. See SER 1, COE 0000628. As a result, any reading below 30% is unreliable. RH readings of 27%, for example, could actually be anything between 0 and 30%.(71)
VIII. DEFENDANTS VIOLATED THE FREEDOM OF INFORMATION ACT.
Defendants argue that plaintiffs' FOIA claims are moot because the requested documents have now been filed as part of the administrative record. It is no answer to say that when everything was done and it was too late to provide input, plaintiffs were given the information they requested. Plaintiffs requested this information so they could provide input during the administrative process. Plaintiffs used FOIA only because defendants refused other attempts to obtain information.(72) Defendants' FOIA violations are particularly important here because of their arguments that the Court should defer to their decisions on the skeleton and the site. Those decisions were made while they denied plaintiffs information needed to participate in the process.
Defendants also argue that plaintiffs must prove that defendants failed to provide all requested information. Defendants' Memorandum at 43. That is not the law. The burden of proof is on defendants, and a bald assertion in a memorandum is not sufficient. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (courts are not required "to accept glib government assertions of complete disclosure or retrieval. Rather, to ground a grant of summary judgment on the basis of agency protestations of compliance, the supporting affidavits must be 'relatively detailed' and nonconclusory and must be submitted in good faith"). Defendants offer no such evidence, and it is unlikely they can. For example, plaintiff's sixth request asked for a copy of a report prepared by Larry D. Banks together with all documents pertaining to its preparation or review. ER 412. Defendants sent only a copy of the report, and claimed there was nothing more. ER 418, 419. It is not credible that a federal project can be undertaken without any supporting documentation such as project specifications, contract forms, status reports, reviewer comments, billing reports, payment verification, or the host of other paperwork that inevitably accompanies government transactions.
Defendants raise a host of other procedural arguments. They assert that plaintiffs' claims are improper because the FOIA requests were made by their attorneys. The authorities they cite are inapposite. Defendants' Memorandum at 41, n. 43. Those cases did not involve FOIA requests made by trial counsel in the middle of litigation, or situations involving government suggestions to counsel to use the FOIA process.(73) Moreover, defendants did not raise this objection in their answer, and have always treated these requests as being made on behalf of plaintiffs.(74) Defendants also ignore their own regulations. See 32 CFR § 518.20 ("Avoidance of Procedural Obstacles") ("DoD Components shall ensure that procedural matters do not unnecessarily impede a requester from obtaining DoD records promptly. Components shall provide assistance to requesters to help them understand and comply with procedures established by this regulation and any supplemental regulations published by the DoD Components.") See also 32 CFR § 518.19 ("Openness with the Public"). Interpretations of other agencies' regulations are inopposite.
Defendants claim that issues relating to the fourth, fifth and sixth FOIA requests are barred because of a failure to appeal those denials. Given their responses to all previous requests, as well as their disclosed intent to withhold documents during the litigation, any appeal would have been futile. "[E]xhaustion is not required if administrative remedies are inadequate or not efficacious." Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496, 499 (9th Cir. 1980). See also Joint Bd. of Control of the Flathead, Mission and Jocko Irrigation Dists. v. United States, 862 F.2d 195, 200 (9th Cir. 1988) ("Objective and undisputed evidence of administrative bias would render pursuit of an administrative remedy futile"). Defendants also claim that they were excused from a timely response to the fourth, fifth and sixth requests because plaintiffs had not paid administrative charges levied for an earlier request. Defendants are aware, however, that plaintiffs objected to those charges because data was redacted from the documents supplied.(75) Their claim of unpaid charges is mere pretext.
FOIA in general and Department of Defense regulations in specific impose an obligation to respond to information requests in good faith. Defendants responded to plaintiffs' requests with technicalities, questionable defenses, evasive responses, and an impenetrable wall of inaction. As early as December 17, 1997, the Department of the Army reached a decision on plaintiffs' appeal of the first denial, but the Deputy Chief Counsel advised that the agency not comply with the statute so it could delay a response during the litigation.(76) No decision was entered on plaintiffs' appeal, and to date there is no indication it will ever be decided.
IX. A SECOND REMAND TO DEFENDANTS WOULD NOT BE APPROPRIATE.
Defendants argue that even if they have violated the law, the Court's only option is to remand the case to them for a third additional round of administrative proceedings. Defendant's Memorandum at 43-44. The Court's authority is not that limited. See Plaintiffs' Memorandum at 39-40. Defendants do not discuss or cite any of these authorities, although their principles are applicable here.
Given their past conduct, there is no reason to believe that defendants would act fairly on a second remand or that they would learn from their past mistakes. In 1997, the Court rejected defendants' arguments that the first cultural affiliation decision was justified because of the geography of the skeleton's discovery, the projectile point in its hip, and Coalition oral traditions that they have always lived in the area. Secretary Babbitt's September 2000 decision was based on the same arguments, only dressed up a little. To borrow the words from another court, this action on remand was "a barren exercise of supplying reasons to support a pre-ordained result." Food Marketing Institute v. ICC, 587 F.2d at 1290.
The Court has already given defendants opportunity and guidance to correct their errors if they had wished to do so. The June 1997 remand pointed out that even if the Coalition's oral traditions are assumed to be correct, they are not sufficient to prove that Kennewick Man was one of the Claimants' ancestors. Bonnichsen, 969 F. Supp. at 652, n.24. That advice was ignored. The Court instructed defendants to look at all the evidence. That instruction was ignored. The Court instructed defendants to provide a reasoned explanation of their decision linking the facts found to the conclusions reached. Instruction ignored. The Court later suggested to defendants that they should be less adversarial to plaintiffs. SER 133 (Tr. of May 28, 1998 at 93). Suggestion ignored. The Court suggested that there should be a more open exchange of information. SER 134 (Tr. of May 28, 1998 at 95). Suggestion ignored. Defendants were told to resolve this matter expeditiously, but it took another 39 months. There is no reason to believe that defendants would act with more speed if given a third chance.(77)
Defendants have often said one thing and done another. They said they would keep an open mind about the issues to be resolved, and then closed their eyes to plaintiffs' evidence. They said they would compile a comprehensive administrative record that would include all relevant documents. SER 8, COE 6926. The final record, however, contains omissions such as correspondence between the parties, documents filed with the Court, and meeting notes that ought to exist. Defendants said that plaintiffs' requested C14, DNA and stable isotope tests were "too destructive" (four grams of bone), and then used many times that amount for their own tests.(78) Despite contrary assurances to the Court, they secretly resumed the practice of allowing tribal religious ceremonies with the skeleton. ER10, COE 0000357; SER 9, COE 6928.
Defendants have been less than candid with the Court. They told the Court that DNA tests were needed for cultural affiliation purposes, while privately Dr. McManamon expressed doubts whether DNA could discriminate at the tribal level. SER 120, DOI 08351. They represented to the Court that Dr. David Smith was preparing a report when he was not. SER 132 (Tr. of June 2, 1997 at 29); SER 137. They repeatedly provided information that is inaccurate or incomplete or "corrupt" or "extraneous" about the skeleton's curation. Even in their latest memorandum they make factual assertions that at best can only be described as speculative.
Almost five years have elapsed now since plaintiffs first asked to study the skeleton. All of them have lost five years from the most productive span of their careers. Until those studies have been completed, the Court should retain jurisdiction so plaintiffs' examinations will not be frustrated by unreasonable demands and restrictions. Defendants have shown unremitting hostility to plaintiffs and obstructionism. Even as recently as only three months ago, defendants were not forthcoming with plaintiffs' representatives during their inspection of the image record, and made them guess about what was in the record.(79)
The Court should also retain jurisdiction so plaintiffs can be given an opportunity to investigate the discovery site to determine how it has been affected by defendants' cover-up and what can be done to mitigate any adverse effects. Discovery may also be needed for final adjudication of any other issues that cannot be resolved on the basis of the existing record.
RESPECTFULLY submitted this 4th day of June, 2001.
BARRAN LIEBMAN LLP
ALAN L. SCHNEIDER
(64) Nor is there any evidence that the letters from plaintiffs' counsel were ever forwarded to Washington SHPO or to the Advisory Council as defendants imply. Although plaintiffs tried to cure this omission, their objections were not received by Washington SHPO until after his deliberations had been concluded. See ER 280, 285, 286 (COE S-485, 474, 480); SER 86a (Schneider). Plaintiffs' objections were mailed to the Advisory Council the same day that body concluded its review of the Army Corps' submissions. SER 87-89 (Schneider 3/19/98); SER 18, COE S-372.
(65) To support their claim that they reviewed plaintiffs' objections, defendants cite only S-534 and S-591. Defendants' Memorandum at 38. These documents are merely transmittal letters enclosing Dr. Stafford's letters, which as already noted Lt. Curtis refused to discuss.
(66) Defendants do not dispute that their notice to plaintiffs was mailed immediately before the Christmas holiday (December 23), sent by ordinary mail, received on Friday December 26, and that they demanded a response by December 29. See ER 306, S-614. S-614 also shows that the December 23 letter responds to a request plaintiffs made on November 10. Defendants do not explain why it took them 43 days to notify plaintiffs or why, having waited 43 days, they established a six day response deadline without making any effort to deliver the notice in person or to inquire whether plaintiffs or their counsel might have plans for the holidays. Nor do they explain why they did not delay their process when they received Mr. Schneider's response explaining that the letter had not arrived in time for any discussion with the plaintiffs. ER 302, COE S-596. As it turned out, defendants never even acknowledged the letter.
(67) Defendants' citation to their decision to withhold project implementation until April 6 to permit plaintiffs to seek judicial relief (Defendants' Memorandum at 40) has little meaning. Defendants did not notify plaintiffs of their plans except through their status report although they sent a personal letter to the tribes. SER 17b, COE S-322.
(68) Defendants say that a long-term plan is foolhardy because events relating to the skeleton are not repeatable but are unique. When they promised the Court in 1998 that a long term plan would be adopted, they knew the skeleton would be needed for multiple purposes. They had already accessed it on numerous occasions. See Appendix E attached. Moreover, these are precisely the circumstances that most demand a careful written plan. The more a skeleton is needed for study, monitoring and other handling, the more important it becomes to take precautions to prevent damage or deterioration before it occurs.
(70) Defendants tell the Court to disregard the 16.9% reading on January 7, 2001, because that was "an extraneous reading" from another room. Defendants gave that reading to the Court as proof that there had been "no unusual temperature and relative humidity fluctuations." SER 142f-g (Defendants' Status Report). It was not until plaintiffs remarked on the wide fluctuations that defendants responded that their reports were based on corrupt data.
(73) Parks v. Department of Educ., 2000 WL 62291 (D. Or. 2000) did not arise in the context of litigation where a party resorted to FOIA to obtain relevant documents and did not involve evidence of agency bad faith; the agency there also submitted the kind of detailed supporting affidavit that is missing here.
(76) "While this is an unusual case, the District is in the process of gathering the documents, and it would be best if they were allowed to continue this for the litigation before answering the FOIA request. Providing the documents under FOIA now would be disruptive to the administrative process and misleading." SER 5, COE 6523a.
(79) SER 158-59 (Hawkinson). When plaintiffs asked that the record be brought to Portland where it would be more convenient for the parties, defendants objected on grounds of security and cost. They failed to tell the Court that they have a back-up copy of the record that could have been used for that purpose. SER160 (Hawkinson Aff).
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