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Plaintiffs Memorandum in Opposition to Intervenors Request for Stay Pending Appeal

Paula A. Barran, OSB No. 80397
Barran Liebman LLP
601 SW Second Avenue
Suite 2300
Portland, Oregon 97204-3159
Telephone: (503) 228-0500
Facsimile: (503) 274-1212

Alan L. Schneider, OSB No. 68147
1437 SW Columbia Street, Suite 200
Portland, Oregon 97201
Telephone: (503) 274-8444
Facsimile: (503) 274-8445

Attorneys for Plaintiffs








CV. 96-1481-JE



The prerequisites for seeking a stay pending appeal are justifiably rigorous; if that were not so, successful parties (like plaintiffs here) would be held hostage by unsuccessful opponents such as the well funded government, or by others like the Tribal Claimants who have a narrow personal interest and no reason not to file an appeal. A stay is "an exceptional response" United States v. Hamilton, 963 F.2d 322, 323 (11th Cir. 1992), and the standard for evaluating a request for a stay pending appeal, like the test for a preliminary injunction, requires a strong showing that the applicant's legal arguments are well founded and a strong showing that the applicant's interests are seriously at risk:

"At one end of the continuum, the moving party is required to show both a probability of success on the merits and the possibility of irreparable injury. * * * At the other end of the continuum, the moving party must demonstrate that serious legal questions are raised and that the balance of hardships tips sharply in its favor." Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983); later proceeding 463 U.S. 1328.

At the same time, though, the court must also evaluate the public interest in part to ensure that it does not overly favor the applicant's narrow personal interests even if the applicant meets the other requirements.

Any consideration of these factors requires the Joint Claimants' motion be denied. They have not shown, and cannot show they are likely to succeed on appeal, and their dismissive treatment of plaintiffs' interests belies the importance of those interests - to the plaintiffs as well as to the public generally.

The Court must evaluate the legal posture of the case to justify the extraordinary remedy of a stay of the judgment, particularly in this case which took six years to resolve. Claimants have not made the showing required to justify another two or three year delay in plaintiffs' study of the skeleton.

The Tribal Claimants intend their appeal to challenge every ruling this court made that was adverse to their position. So, they claim there was error in this court's rejection of the government's definition of "Native American," that there was error in this court's evaluation of the agency's cultural affiliation determination, that there was error in applying the Administrative Procedures Act to the agency's process, that there was error in evaluating whether a coalition may be a proper NAGPRA claimant, that there was error in analyzing the concept of aboriginal lands, that there was error in this court's treatment of the Indian canons of construction, and that even if all those rulings were correct, there was error in failing to send this matter back to the agency again. And Claimants argue that since they might win on one of these issues, there should be a stay (Memorandum at 11).

Claimants' belief that that they need to prevail on only one of these issues to reverse this Court is wrong. Instead, Claimants would have to succeed on nearly every argument they make. This Court cited many reasons for vacating the Secretary's determination. Claimants must convince the Ninth Circuit that this court erred on virtually every one of those reasons, because the Court of Appeals may affirm on any basis finding support in the record. Golden Nugget, Inc. v. American Stock Exchange, Inc., 828 F.2d 586, 590 (9th Cir.1987); Salmeron v. United States, 724 F.2d 1357, 1364 (9th Cir. 1983). That means that Claimants must demonstrate on appeal that there was no basis for this court's decision to vacate the second administrative action. So Claimants must convince the Ninth Circuit that the government's definition of Native American was correct, AND they must convince the Ninth Circuit that this court was wrong in rejecting the finding of cultural affiliation, AND that this court was wrong in failing to remand, AND that there were no underlying procedural deficits in the government's treatment of plaintiffs, AND that Claimants' coalition was a proper claimant. Claimants cannot succeed before the Court of Appeals by demonstrating that there was an error on only one or even several of these issues. For example, even if Claimants were to convince the Ninth Circuit that the government was entitled to absolute deference on its definition of Native American, this court's judgment in favor of plaintiffs would still be affirmed because there was no cultural affiliation, and because of that the Secretary's determination must be set aside. And even if there was a finding that the government's definition of Native American was entitled to deference and that there was substantial evidence of cultural affiliation, Claimants would still have to convince the Ninth Circuit that a coalition of tribes is a proper claimant. Without that, the Secretary's determination must still be set aside. And even success on these arguments will not save the appeal unless Claimants also convince the Ninth Circuit that plaintiffs have no legitimate due process objections to the government's handing of this matter. In other words, this is a case in which the Ninth Circuit will have to conclude that this court committed so many independent legal errors that virtually nothing in the opinion can stand.

It is not possible to read this court's opinion together with the mountain of authority it cited and still believe that the opinion is so unfounded that the Ninth Circuit will reverse it in toto. Although there is little case law interpreting NAGPRA, principles of administrative law are well founded and well articulated by the Supreme Court and the Ninth Circuit. This court did not create its legal analysis out of whole cloth. It evaluated the law based upon solid controlling authority from the Supreme Court, Ninth Circuit and other Circuit Courts of Appeals. This court also undertook the massive task of reviewing the entire administrative record. That degree of study and analysis on its own is sufficient to deny a request for a stay. See Oregon Natural Resources Council v. Daley, 16 F. Supp.2d 1256 (D. Or. 1998) (stay denied; trial court had already thoroughly analyzed the law; possibility that Ninth Circuit might ultimately disagree insufficient to support a request for a stay); Texaco Refining and Marketing Inc. v. Davis, 819 F. Supp. 1485 (D. Or. 1993) (denying stay; court had already ruled that plaintiff had made a strong showing of success on the merits in preliminary injunction proceeding).


A. Claimants have not shown a probability or even likelihood that they will succeed in reversing this Court's analysis of the term "Native American."

There is no probability or even serious likelihood that the Ninth Circuit will reverse this court's conclusion that age alone does not make something Native American for purposes of NAGPRA. First, there is no question that the government found these remains to be Native American on age alone: the court did not have to look beyond the documents in the administrative record and the Ninth Circuit will find that same evidence when it conducts its review. DOI 5819; 10018-22 are all clear that the remains were formally pronounced to be Native American based simply on their age and the location of the discovery, as the court found. Opinion at 16, 19. Claimants do not dispute that was the approach.

The court's legal analysis was informed by, and based on, decisions from the Supreme Court and the Ninth Circuit; there is no probability or even serious likelihood that it will be found to be fatally defective. The court informed itself of the scope of deference due to the government's decision by considering the most recent rule articulated by the Supreme Court, United States v. Mead Corp., 533 U.S. 218, 226-27 (2001), handed down one day before the court took oral argument on this case. There is no probability the Ninth Circuit can retreat from the rule articulated in that decision, or in the similarly binding authority of Christensen v. Harris County, 529 U.S. 576, 587 (2000) (interpretations in opinion letter lack the force of law and do not warrant Chevron-style deference). Claimants would have to argue and convince the appellate court that it should disregard the law as expressed by the Supreme Court on more than one occasion. See Martin v. Occupational Safety and Health Review Com'n, 499 U.S. 144, 157 (1991) (interpretive rules are not entitled to Chevron deference); Hall v. United States Environmental Protection Agency, 273 F.3d 1146, 1155-56 (9thh Cir 2001). They will similarly have to argue that the Ninth Circuit should reverse itself on like principles it has discussed. See State of Hawaii v. FEMA, 294 F.3d 1152 (9th Cir. 2002) (rejecting agency interpretation as unreasonable, leading to absurd results, and contrary to Congressional policy).

Very recent opinions from the Supreme Court and the Ninth Circuit demonstrate two things: just how well founded this court's decision was, and just how unlikely it is that Claimants will succeed on appeal. On March 19, 2002 the Supreme Court handed down its opinion in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002) which invalidated a notice-and-comment regulation of the Department of Labor that imposed its categorical penalty on an employer who failed to give an employee timely notice that leave would count against Family Medical leave. The Supreme Court found this "regulatory sleight of hand" was "contrary to the Act's remedial design." Id. at 1162. And on November 4, 2002, the Ninth Circuit upheld a decision of this court in Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166, 1175 (9th Cir. 2002) by applying "an elementary canon of construction" requiring agency interpretations to give effect to all sections of a statute. Use of that canon required rejection of Secretary Norton's interpretation of the law because her interpretation rendered part of the law inoperative.

In this case, it is not probable or even seriously likely that the Ninth Circuit will reject this court's analysis since the Supreme Court and the Ninth Circuit have both so recently reaffirmed that it is entirely proper, indeed necessary, to proceed the way this court did, including looking to the statute as "a symmetrical and coherent regulatory scheme" and interpreting provisions of the law in the context of other provisions of that law. That is what this court did, Opinion at 27 (considering the definition of Native American in the context of other provisions of NAGPRA such as the Act's definition of "sacred objects"), and in doing so it proceeded precisely the way the Supreme Court and Ninth Circuit said it should.

Claimants argue (Memorandum at 8) that this court committed grave legal error and that they are thereby assured of success because this court did not defer to Department of Interior regulations which deleted language that Congress chose to put in NAGPRA. Claimants argue that DOI did so to improve on Congress' wording so that there would be no "mistake" and so there would be a focus only on the concept of indigenous in looking at whether an object was Native American. Otherwise, they theorize, someone who read what Congress wrote would make a mistake. The Ninth Circuit will not need to look far to find controlling Supreme Court authority that says a regulatory agency may not do that. Most recently Ragsdale v. Wolverine World Wide, Inc. reinforced the principle that no matter how serious an asserted problem may be, it is not up to a regulatory agency to undo what Congress chose to do. Claimants may think that Congress' words could too easily lead to a "mistake," but if that is a mistake, correcting it must be left to Congress, not to an administrative agency. Ragsdale, 122 S. Ct. at 1162-63.

Claimants' additional argument, that selecting 1492 as the cut off point for Native American status is proper because it is easy and convenient (Memorandum at 9) will necessarily be rejected out of hand because the Supreme Court says it is not proper for an agency to proceed that way. See Ragsdale, 122 S. Ct. at 1162 (holding that the Secretary of Labor could not adopt categorical rules that made a statute administratively easy to enforce when Congress wanted a case-by-case examination).

Claimants' other arguments emphasize emotion at the expense of reason. They argue, for example, that it is unfair not to recognize extinct tribes as indigenous, that an emphasis on a relationship with a current tribe allows grave robbers to somehow profit from genocide and that radiocarbon dating and DNA studies will be required of many cultural items because of the court's opinion. All of those claims are wrong and there is no probability or even serious likelihood that the Ninth Circuit will find them persuasive. Claimants' use of extinction and genocide to illustrate their thesis makes little sense, for even if remains of an extinct people might be located some day, any claim would entirely fail on the inability to prove cultural affiliation. Similarly the same emotional posture permeates Claimants' other argument that DNA studies and radiocarbon dating will be necessary on any future NAGPRA claims. That is not so. There are many ways to establish a claim which would not involve any form of testing including, for example, burial items found at the same location, aboriginal land, or clear and specific oral histories. Moreover, in many such cases valid claims are unlikely to be challenged. Kennewick Man presented a highly unusual situation, and the Secretary adopted an approach for his administrative convenience, not one based upon Congress' design.

This court's opinion does not write any law. It did not decree a blanket standard of proof for NAGPRA claims, nor did it do anything to make it any harder or any easier to make or dispute a claim under NAGPRA. It sat in review of an agency action and found that in this single individual case the Secretary did not proceed correctly.

B. Claimants have not shown a probability or even likelihood that they will succeed in reversing this Court's conclusions following review of the entire administrative record or its rejection of the finding of cultural affiliation.

The court did not lightly conclude that there was insufficient evidence on the record as a whole to establish cultural affiliation. To begin, the court undertook a task that involved a thorough review of the entire administrative record. Order at 32. There is no probability or even serious likelihood that the Ninth Circuit will disagree with this court's conclusion that the Secretary failed to determine "an identifiable earlier group" to which the Kennewick Man allegedly belonged, or even establish that he belonged to a particular group, or this court's conclusion that the Secretary did not adequately address the requirement of a "shared group identity," or the conclusion that he did not articulate a reasoned basis for his decision in light of the record. Nor will the Ninth Circuit disagree with the conclusion that the Secretary's determination is not supported by the reasonable conclusions of the Secretary's experts or the record as a whole. Opinion at 38. A wholly contrary view on each of these points by the appellate court would be required before there could be a possibility of a reversal by the Ninth Circuit. That is a virtual impossibility.

There can be no dispute on this record that the Secretary failed to identify the earlier group, given that the undisputed evidence in the record is that there were as many as 20 different highly mobile groups, each including anywhere from 175 to 500 members, as articulated at DOI 10058, 10136. Opinion at 39. Even the Secretary's own experts failed to identify an earlier group or demonstrate that Kennewick Man belonged to such a group. That is an unassailable conclusion by this court since it resulted from a direct and independent review of the administrative record. See DOI 10107, 10326. Opinion at 43.

Nor can there be a dispute on this record that the Secretary, who is obliged to explain his analysis, failed to explain how there can be continuity between the cultural group represented by the Kennewick human remains and the modern-day claimant Indian tribes without first identifying the group that the Kennewick Man belonged to and what that group's cultural characteristics were. The only thing in the record that even approaches such an explanation is the designation of the group as something that was part of either the "Windust Phase" or "Early Cascade Phase." These two archaeology terms are based upon projectile point styles used to identify eras extending several thousand years each. Opinion at 39-40. There is no serious likelihood that the Ninth Circuit will reverse this court on that point, since it is taken directly from the Secretary's determination and the administrative record. The Ninth Circuit cannot conclude otherwise. Moreover, even if this were a permissible conclusion, the Secretary was legally required to explain how he got there, and he did not. DOI 10015, Opinion at 40.

The Claimants have failed to demonstrate that the Ninth Circuit will likely disagree with this court in its analysis of the important concept of "shared group identify," a NAGPRA prerequisite to a finding of cultural affiliation. The legal test, which informed the court's review of the record, came directly from the statute, formal regulations, and from the legislative history of this statute; it was no mere flight of judicial fancy. Opinion at 44-45. The record shows no dispute that there are significant unexplained gaps in continuity in the archaeological record that are vastly more significant than the "reasonable gaps" contemplated by the statute's drafters. See, S. Rep. No. 101-473 at 9 DOI 0581; 43 C.F.R. § 10.14(d). That is particularly so where as here there is no explanation whatsoever, and where the Secretary's own experts take a carefully neutral position. Opinion at 47-48.

Nor will the Ninth Circuit likely disagree with this court's analysis of the Secretary's extraordinary reliance on oral tradition and his related conclusion that oral history can be used to span nearly 500 generations. That is an unsupported conclusion, not based on any evidence in the record, and not even sufficiently supported by the Secretary's own experts. The court properly concluded that the oral history in question here was far too fragile to support the weight of the Secretary's decision and there is certainly no serious likelihood that the Ninth Circuit will disagree. Opinion at 55.

Nor will the Ninth Circuit disagree with the court's observations that the Secretary failed to follow one of the most basic principles of administrative law: that he explain his decision. That principle of law is unlikely to be challenged since it is based on clear Ninth Circuit authority requiring a "rational and ample" basis for an administrative decision. And the lack of explanation here is apparent on the face of the Secretary's decision. He did not explain what he meant by the "geographic" evidence, or offer any examples, and his discussion of evidence of oral tradition noted only that the coalition members possessed similar traditions relating to the past landscape of the plateau, and that those traditions do not speak of migration; he failed to explain how these factors without more led to his ultimate conclusion of cultural affiliation. Opinion at 56. No amount of review by the Ninth Circuit will turn up a missing chapter by a missing expert containing this missing analysis.

C. Claimants have not shown a probability or even likelihood that they will succeed in reversing this Court's conclusion that NAGPRA does not permit a coalition to be a claimant.

The Claimants have not shown that there is a serious likelihood that the Ninth Circuit will reinstate the Secretary's extraordinary determination that a coalition of tribes is a proper NAGPRA claimant. To begin, there is no conceivable legal error in the conclusion that a band lacking federal recognition is not a proper NAGPRA claimant, as the court observed. Opinion at 34. That analysis flows directly from the plain language of the statute as written by Congress.

Nor is there any perceptible legal error in the court's conclusion that NAGPRA contemplates a claimant, not a coalition of claimants, for that is clear from the plain language of the statute which, as the court noted, speaks in the singular by identifying the appropriate recipient as "the Indian tribe . . . which has the closest cultural affiliation." 25 U.S.C. § 3002(a)(2)(B). This conclusion is consistent with references to a single tribe in other NAGPRA provisions and is also consistent with the Secretary's formal regulation addressing cultural affiliation. As the court noted, cultural affiliation "requires proof of a relationship of shared group identity "between a present day Indian tribe . . . and an identifiable earlier group." 25 U.S.C. § 3001(2) (emphasis added). See also 25 U.S.C. § 3005(a)(1) (providing for repatriation if "the cultural affiliation of Native American human remains and associated funerary objects with a particular Indian tribe or Native Hawaiian organization is established . . .") (emphasis added); 43 C.F.R. § 10.14(c)(3) ("Evidence . . . must establish that a present-day Indian tribe . . . has been identified from prehistoric or historic times as descending from the earlier group")." Opinion at 35.

Moreover, the Ninth Circuit will surely see that Claimants are changing their position if they argue before the appellate court (as they only now argue before this court) that in any event each tribe was making an individual claim. See Memorandum in Support of Motion for Intervention at 2. Although there were early individual claims by individual tribes, those individual claims were abandoned in favor of a claim by a joint coalition of five, and those five jointly emphasized that all individual claims had been superseded by the joint claim: "Here, a joint claim was brought when the claimant tribes recognized that they shared an interest in Columbia Park. The consolidated claim superceded (sic) all prior claims" (Amicus Memorandum at 30-31) (Docket No. 445). They emphasized that "only one tribal claim" was filed (Amicus Memorandum at 34) (Docket No. 445). The appellate court will not seriously entertain an argument so contrary to the position that Claimants advanced in their argument to this Court, even if only on the principle that no appeal can be based on a position not taken before the trial court. As a general rule, an appellate court requires that an argument be raised in the lower court sufficiently for the court to consider and rule on it. Bolker v. Commissioner of Internal Revenue, 760 F.2d 1039, 1042 (9th Cir. 1985); Rothman v. Hospital Service of Southern California, 510 F.2d 956, 960 (9th Cir.1975). In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir.1989). This principle accords to the district court the opportunity to reconsider its rulings and correct its errors. Morrow v. Greyhound Lines, Inc., 541 F.2d 713, 724 (8th Cir.1976). Claimants repeatedly based their claims before this court on their joint claim. Only now, after judgment, are they amending their posture. D. Claimants have not shown a probability or even likelihood that they will succeed in reversing this Court's conclusion that the Secretary did not accord plaintiffs the requisite due process.

Even if Claimants succeed in convincing the Ninth Circuit that this court erred in setting aside the categorical calendar approach to defining "Native American" AND that it erred in its evaluation of the administrative record and the lack of substantial evidence of cultural affiliation, AND that it erred in its reading of NAGPRA's language describing who can be a proper claimant, Claimants must still convince the Ninth Circuit that plaintiffs were treated fairly in the administrative process.

The Claimants' Ninth Circuit docketing statement says that the Claimants intend to argue that the Court erred in applying the Administrative Procedures Act to the government's handling of the underlying administrative determination. Eighteen months ago Claimants framed the argument this way: the canon "expressio unius est exclusio alterius" meant that it was proper for the government to engage in an exclusionary dialogue with Claimants because NAGPRA mandated consultation with them. Claimants cited the Ninth Circuit's opinion in Echazabal v. Chevron USA, Inc., 213 F.3d 1098, 1102 (9th Cir. 2000). But in June, 2002 a unanimous Supreme Court reversed the Ninth Circuit on the very principle for which the Claimant cited that case in the first place. 122 S.Ct. 2045, 2051-53 (2002). Claimants cannot now argue with any logic or force that the Ninth Circuit will likely disagree with the Supreme Court.

Claimants have also not demonstrated a serious likelihood that the Ninth Circuit will overlook the other clear procedural errors in the government's handling of this case. The factual basis for the court's findings cannot be questioned: it comes directly from the administrative record which showed that the Tribal Claimants received advance copies of the government's cultural affiliation reports to be used in planning their own submissions (DOI 6982; DOI 8695) and the text of Dr. McManamon's private letter to the Tribal Claimants speaks for itself (DOI 6982, 8695-96, 8703-05, 8713-19, 9101-02).

There is no serious likelihood that the Ninth Circuit will reverse its own decisions on procedural requirements in administrative proceedings. That court has already firmly announced that an agency decision will be set aside if there is no indication that the decisionmaker considered materials submitted by one party. Beno v. Shalala, 30 F.3d 1057, 1073-76 (9th Cir. 1994). This court was not writing its own law when it followed that authority. Opinion at 21. Nor is there any serious likelihood that the Ninth Circuit, which so emphasizes fairness in all aspects of government, will disagree with the articulation of the Fifth Circuit that the critical question in any challenge to the propriety of the method used by an agency in reaching a decision is whether the procedure used is fair. Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 910 (5th Cir. 1983), Opinion at 22.

Plaintiffs do not believe that this court's decision will be reversed on any point, let alone all of the critical issues that Claimants must prevail on to gain ownership of Kennewick Man's skeletal remains.

E. Claimants have not shown a likelihood that they will succeed in reversing this Court's conclusion that the Secretary improperly applied NAGPRA's "aboriginal" lands provision, particularly given the government's judicial admission to the contrary.

Claimants complain that this court was unduly rigid in its analysis of whether the Secretary could support his decision on the theory that Claimants had a valid "aboriginal" occupation claim. There is no likelihood that the Ninth Circuit will agree, and there is no doubt that the Secretary was wrong to the extent he relied on this theory.

The Secretary's reliance on the aboriginal lands claim was a substantial procedural error given the fact that the government had made judicial admissions that the skeleton was not found on aboriginal lands. See, e.g., American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988) (formal admissions in pleadings have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof; unless amended they are conclusively binding at trial and on appeal.) As this court noted, the government made no attempt to amend its admission or its formal notice to the court that the land on which the remains were discovered were not aboriginal. Opinion at 58-59. Since there is no room for argument in the record, the Ninth Circuit cannot disagree. It is also undisputed that the Secretary never advised the court or plaintiffs that the aboriginal lands claim was back under consideration. He kept that a secret from the court and plaintiffs until the determination was issued. That tactic alone provides an independent basis for vacating the administrative decision. See Portland Audubon Soc. v. Endangered Species Committee, 984 F.2d 1534 (9th Cir. 1993). Claimants cannot make even a colorable argument that the Ninth Circuit will disagree on this point given that Court's decision just this past month describing Portland Audubon Soc. v. Endangered Species Committee as "our precedential holding" that standing arises directly from "procedural violations in an agency process" in which the complaining party has participated. See Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166, 1172 (9th Cir. 2002).

F. This Court did not err in refusing to remand this matter to the agency, and its decision was based on controlling Ninth Circuit precedent.

There is no serious likelihood that the Ninth Circuit will reverse this court's conclusion that the government should not be given a third opportunity to reach a valid decision on the fate of this skeleton. To prevail on this issue, Claimants would have to convince the appellate court that it should disregard its own authorities which consistently hold that remand is not required in those unusual cases where the court cannot be confident of an agency's ability to decide a matter fairly. See, e.g., Guerrero v. Stone, 970 F.2d 626, 636 (9th Cir. 1992) (court may substitute own judgment for that of agency and order "substantive relief sought" in appropriate circumstances); Alvarado Community Hosp. v. Shalala, 155 F.3d 1115, 1125 (9th Cir. 1998), amended, 166 F.3d 950 (9th Cir. 1999) (ordering relief rather than remand to avoid "further recondite litigation"); Greene v. Babbitt, 943 F. Supp. 1278, 1288 (W.D. Wash. 1996) (court has no obligation to remand, may fashion equitable remedy, when it has no confidence in agency's ability to decide matter expeditiously and fairly). When "administrative misuse of procedure has delayed relief," as is certainly the case here, the court is not limited to "mere remand." Benten v. Kessler, 799 F. Supp. 281, 291 (E.D.N.Y.1992). The court has the "equitable power to order relief tailored to the situation." Id.; Sierra Pacific Indus. v. Lyng, 866 F.2d 1099, 1111 (9th Cir.1989) (court reviewing agency action may "'adjust its relief to the exigencies of the case.' ") (quoting Ford Motor Co. v. NLRB, 305 U.S. 364, 373 (1939)).

See also Stone v. Heckler, 761 F.2d 530, 533 (9th Cir.1985) (ordering benefits rather than remanding when ALJ's finding of "not disabled" was not supported by substantial evidence, the record was fully developed, and further proceedings would "only prolong an already lengthy process"); Kelly v. Railroad Retirement Bd., 625 F.2d 486, 496 (3rd Cir. 1980) (refusing to remand for further proceedings when delay was already unreasonable); Carr v. Sullivan, 772 F. Supp. 522, 531 (E.D.Wash.1991).

Claimants will have a particularly onerous task to convince the Ninth Circuit that this court erred in refusing to remand this case to the Secretary for yet another go around because it will have to convince that court that the decision was an abuse of discretion. A choice of remedial relief tailored for a specific situation is reviewed for an abuse of discretion. Sierra Pacific Indus. v. Lyng, 866 F.2d 1099, 1111 (9th Cir. 1989); Greene v. Babbitt, 943 F.Supp. 1278 (W.D. Wash. 1996); United States v. Washington, 157 F.3d 630, 642 (9th Cir. 1998). That, in turn, would require that the Ninth Circuit find an error of law, or a clearly erroneous factual finding relating to the decision to remove this case from the agency. Claimants point to no such error, and there is no probability or even serious likelihood that the Ninth Circuit will interfere given the heavy burden Claimants will have on appeal.

G. Claimants wholly disregard the interests of the public, which would not be served by a stay.

In determining whether a stay of a judgment or order is appropriate, courts should consider how the interests of the public would be affected by issuance of the stay. Claimants confuse the "public" interest with their own narrow individual interest and they disregard the fact that there is a public interest that would not be served by any further delay in the study of these remains. The interests of the general public in study of archaeological resources is articulated in law and regulations which, as Court pointed out, are "clearly intended to make archeological information available to the public through scientific research." For example, ARPA provides for issuance of permits when there is a determination that the activity "is to be undertaken for the purpose of furthering archaeological knowledge in the public interest which may include . . . scientific or scholarly research, and preservation of archaeological data . . . ." 32 CFR § 229.8(2). The issuance of the initial ARPA permit in this case was as, this court found, "at least an implicit determination that doing so might further archaeological knowledge in the public interest." That conclusion is unassailable because these remains are "of obvious archaeological significance." See Opinion at 71-72.

In considering a motion to stay, a court must make an independent judgment of the public interest, and cannot just rely on the litigation posture of the Claimants who are seeking the stay. Lopez v. Heckler, 713 F.2d 1432, 1437. This court has already pointed out that the public interest favors study of these remains. Another delay of two or three years in study would not be in the public's interest.

More than three years have passed since plaintiffs brought to the court's attention the serious negative effects of what was then a three-year delay in study, many of which have a cumulative impact. Scholars who study and do research on the peopling of the Americas are not favored with an abundance of direct evidentiary data with which to work (2002 Bonnichsen Affidavit filed with this memorandum). Artifacts from this era are not plentiful, and well preserved skeletal remains are uncommon. Id. The Kennewick Man skeleton is one of the few early North American skeletons complete enough to provide a full range of biological information (1999 Bonnichsen Affidavit at ¶ 6; Docket No. 217). Excluding Kennewick Man and the Spirit Cave mummy, there are only four other known adult human crania from the U.S. securely dated to more than 8,000 years ago. Id. Only one of them is as complete as the Kennewick crania. Id. Only one adult human crania older than 8,000 years B.P. is associated with as much of the postcranial skeleton as Kennewick Man. Id.

The information that plaintiffs and their study team will obtain from investigation of the skeleton will be shared with other scientists and any one else who is interested (2002 Bonnichsen Affidavit at ¶ 10.) The public is adversely affected in many ways when dissemination of this information delayed:

  • The studies conducted by the government are not adequate to provide the information needed for determining Kennewick Man's place in prehistory (1999 Bonnichsen Affidavit at ¶ 12). Without adequate information about the skeleton, researchers are limited in their ability to develop and test new theories about the peopling of the Americas (2002 Bonnichsen Affidavit at ¶ 7).
  • The databases available to plaintiffs and their study team colleagues contain data on many skeletons not included in other databases (1999 Gill Affidavit at ¶4; Docket No. 215).
  • Delay in the Kennewick Man study has left critical gaps in and affected the database maintained by Dr. Jantz and Dr. Owsley which has practical application in many areas including ensuring that NAGPRA repatriation is properly done. Because of the extremely small number of ancient skeletons, the addition of information from a single new skeleton can result in a dramatic reordering of statistical affinities between populations (1999 Brace Affidavit at ¶ 5; Docket No. 216). Such changes can generate new hypotheses or questions for research (1999 Jantz Affidavit at ¶ 5; Docket No. 213).
  • * * * * * * * * Because of the publicity surrounding Kennewick Man, interpretations of New World biology that do not contain a thorough analysis of the skeleton will be considered incomplete (1999 Jantz Affidavit at ¶ 5). As a result, the ability of researchers to publish papers may be effected by any further delays in study of the skeleton (2002 Bonnichsen Affidavit at ¶ 7; 1999 Brace Affidavit at ¶ 5; Docket No. 216).
  • Delays in obtaining information about the skeleton affects the ability of researchers to obtain research grants (2002 Bonnichsen Affidavit at ¶ 7; 1999 Brace Affidavit at ¶ 7).
  • If study is delayed for another two or three years, an entire generation of students may go from high school to a final graduate degree without ever having the opportunity to learn about Kennewick Man and this era of the peopling of this continent (2002 Bonnichsen Affidavit at ¶ 7).
  • Discussions about this skeleton, which are ongoing, are in danger of taking place in an environment of inaccurate and incomplete information. The "unknowns" create a risk that conclusions about the skeleton will be distorted, and there are already many inaccurate conclusions in the popular literature about its supposed racial affinities (2002 Jantz Affidavit at ¶ 4).
  • The longer the delay, the greater the harm to the public since perceptions based upon erroneous data can take decades to correct (2002 Jantz Affidavit at ¶ 5).
  • Study of the skeleton has worldwide significance because of its implications for understanding how modern populations developed (1997 Steele Affidavit at ¶ 6; Docket No. 51).
  • Claimants assert that further delay in study of the skeleton will not harm plaintiffs (and presumably the rest of the world) because the additional time can be used for more evaluation of the information obtained from the government's investigations. Memorandum at p. 15. Claimants ignore the fact that the government's data have only limited value. That data has not been independently verified, and until that is done, they cannot be accepted and become part of the body of evidence used by scientists (1999 Steele Affidavit at ¶ 7; Docket No. 211). Questions exist about the accuracy of some of the measurements reported by the government's investigators (2002 Jantz Affidavit at ¶ 3). Unresolved questions also exist about whether the projectile point in the skeleton's hip is a Cascade point (2001 Bonnichsen Affidavit at ¶ 3; Docket No. 449), about whether the skeleton was intentionally buried at the discovery site by other humans (1999 Owsley Affidavit at ¶ 12; Docket No. 212), and about many other issues (2002 Bonnichsen Affidavit at ¶ 8). The photographic and other image record of the skeleton is inadequate (2001 Owsley Affidavit at ¶¶ 3-5; Docket No. 451), and the cranium must be reconstructed to determine if prior reconstructions were correct (1999 Hunt Affidavit at ¶ 10; Docket No. 214).
Plaintiffs and the rest of the world do not need more time to evaluate the government's information. What they need is better and more complete information about the skeleton so they can make up their own minds about what Kennewick Man means for American prehistory. Thorough study of the skeleton would be a major benefit to the United States and even one member of the government's study team agrees (1997 Powell Affidavit at ¶ 6; Docket No. 55). That study should not be delayed any longer.

H. Claimants have failed to demonstrate that they will suffer irreparable harm, or that the balance of hardship tips sharply in their favor. Instead, it is plaintiffs who will be most seriously affected by a further delay in study.

One essential requirement for establishing a need for relief is irreparable harm and the inadequacy of legal remedy. Sampson v. Murray, 415 U.S. 61, 88 (1974). Several principles offer guidance on this critical component. "First, the injury must be both certain and great; it must be actual and not theoretical." Wisconsin Gas Co. v. F.E.R.C., 758 F.2d 669, 674 (D.C. Cir. 1984). In that regard, the party seeking relief must show that the injury complained of is of such imminence that there is a "clear and present" need for relief to prevent the harm. Wisconsin Gas, 758 F.2d at 674. Speculative and hypothetical concerns are insufficient to meet this burden. Claimants' complaints of potential injury from study are entirely speculative and exaggerated.

All that has happened so far is that plaintiffs have submitted their study plan to the government, in accordance with this court's directive. The government has not yet agreed to permit anything, let alone agreed to a date for study. Claimants' motion for a stay is in part an attempt to draw this court into a battle over what studies should be performed. They raise exaggerated concerns about what might happen to the skeleton (including the fanciful thought that plaintiffs' studies will be so destructive they will entirely consume the remains and preclude repatriation (Memorandum at 5) and they argue that most if not all of plaintiffs' studies are "redundant" for one reason or the other. These arguments are without merit. Plaintiffs' studies are not redundant. They are needed and appropriate to verify data previously reported about the skeleton, to obtain new data about the skeleton, and bring multiple perspectives to the evaluation of unresolved questions. (See 2002 Chatters Affidavit at ¶ 7; 2002 Owsley Affidavit at ¶ 7-9.) As this court has noted, plaintiffs are eminent scientists. Opinion at 72. They and their study team collegues have examined thousands of known skeletons. Their studies will not harm the Kennewick Man skeleton (2002 Owsley Affidavit at ¶¶ 3-6).

It will not be lost on the court that claimants have a flexible concept of harm. On a number of occasions, Claimants were granted access to the skeleton for their religious purposes. In the process, they handled the skeleton, dropped ashes over it and left cedar boughs in the container, all of which were potentially harmful. Reburial of the skeleton as they propose would inevitably result in its complete destruction (2002 Chatters Affidavit at ¶ 7).

Claimants did not object when the Army Corps dropped 500 tons of rock and fill on the on the discovery site, destroying any bones that had not been removed. They did not seek to intervene in the lawsuit to stop study of the skeleton by the government, even when those studies involved the removal of almost 60 grams of bone for radiocarbon and DNA testing. Instead, as long as scientific study was being used to solidify their claim, they supported it. The Umatilla, Colville, and Nez Perce all advised the government during the administrative process of their support for some study. The Umatilla advised Lt. Col. Curtis of their support for "a reasoned and scientific approach to resolving these issues, including limited scientific non-destructive testing." Letter of September 16, 1997, COE Exhibit 650 at 7080. Similarly, the Colville expressed support for "a reasoned and scientific approach to resolving the issues of racial affiliation and age in a limited non-destructive method." Letter of September 30, 1997, COE Exhibit 631 at 6995. The Nez Perce advised that it had "concluded that such a limited examination may be appropriate." Letter of October 1, 1997, COE Exhibit 635 at 6992. At a consultation meeting, positions among the members of the Coalition were divided, with the Colville voting to "take your best shot" and the Umatilla asking for studies to "work from least to worst." COE Exhibit 446 at 5137. Although the Yakama Nation voted for "no studies" at that consultation meeting, within two weeks their position changed to "ensuring that only necessary and sufficient testing, with minimal insult, is done to the Ancestor, providing the probability of discrete determinative data that the DOI judges it needs to arrive at a supportable conclusion of whether or not the Ancient Remains are 'Native American.'" Letter of July 31, 1998, DOI at 03362.

The Umatilla Tribe expressed willingness to accept an inventory of the skeleton, an analysis of adhering sediments, an analysis of the projectile point, metric studies subject to some qualifications, and non-metric studies subject to qualifications. Letter to Francis McManamon of August 4, 1998, DOI at 03381-03384. The Yakama Nation expressed its willingness to consider studies and tests relevant to the issue of status as a Native American. Letter to Francis McManamon of July 31, 1998, DOI at 03362-03374.

See also letter to Francis McManamon of July 31, 1998 from the Colville Tribe, DOI at 03375-03380.

The Umatilla expressed support for "a thorough examination of the remains by a team of qualified physical anthropologists." Letter of September 16, 1997, COE at 7080. Although the Umatilla rejected some tests because they "may run counter to our efforts," (letter of August 4, 1998, DOI at 03386), at times they supported testing so long as the findings could facilitate timely repatriation. Umatilla letter of September 16, 1997, COE Exhibit 650 at page 7080. Six months later the tribe took the position that DNA testing should be the only kind of testing allowed. CTUIR letter to Secretary Babbitt, DOI at 02963. The tribe later changed its position on DNA testing on the theory that it would not assist the government to make a cultural affiliation determination. CTUIR letter February 7, 2000 to Francis McManamon DOI at 06975. Similarly the Colville expressed the interest that the study data be the "exclusive property" of the Coalition. (Letter to Ballard of April 13, 1998, DOI at 02720) and they initially supported DNA testing. (DOI at 02719.)

In other situations, Claimant members have supported examination and analysis of human skeletal remains. For example, on five separate occasions, the Colville collaborated with Dr. Chatters in analysis of skeletal remains affiliated to that tribal confederation (2002 Chatters Affidavit at ¶ 2.) The studies included cranial and post-cranial measurements, paleopathological analysis, musculoskeletal analysis, radiocarbon dating and isotopic analysis. On one occasion, DNA testing was considered. Id. at ¶ 2E.

Claimants cite Yankton Sioux Tribe v. United States Army Corps. of Engineers, 209 F.Supp.2d 1008 (D. S.D. 2002), and argue that the trial court in that controversy issued a preliminary injunction "for much less" than what they seek here. If Claimants mean to suggest that the plaintiff in that case had little support but got an injunction anyway, that reliance is entirely misplaced. In that case, the injunction barely delayed anything. The human skeletons at issue were discovered in May 2002. Litigation resulted immediately and the court issued its opinion June 28, 2002. In other words, the litigation had barely begun when the injunction was argued - a relatively short six weeks. In contrast, plaintiffs here have been involved in six years of litigation and this court has twice vacated the determinations of the Secretary of Interior.

Moreover, the claimants in Yankton Sioux had established a probability that the remains were Native American and culturally affiliated to them. Indeed, the court found that given the evidence presented to it "there is a high probability" that the remains were ancestors of the claiming tribes. That factual predicate does not remotely compare to this case which has been pending for more than six years now and has gone through two administrative processes. Here, unlike Yankton Sioux, this court has already found that the skeleton has not been shown to be Native American or culturally affiliated to the Claimants.

Claimants casually dismiss the consequences to plaintiffs if they and their study team colleagues are made to wait even longer for an opportunity to examine this scientifically important skeleton. The Ninth Circuit cannot complete its task as quickly as Claimant suggests. It will be months before briefing is completed, even if the Ninth Circuit timetable is rigidly adhered to. It will be months after that before the case is scheduled for oral argument. This court needed a full year and more to issue its opinion; the Ninth Circuit will scarcely issue a quick memorandum ruling to end the controversy. Considering the workload of that court and the complexity of this appeal with its multiple parties and wide-ranging issues, a two year time table is overly optimistic. The Ninth Circuit reports that in general the time between filing a notice of appeal to oral argument is 12-20 months, assuming that briefing happens in accordance with the normal schedule and is not delayed; after oral argument a decision generally requires from 3-12 additional months.

The consequences to plaintiffs of another two or three year delay in gaining access to the skeleton will be significant, immediate and direct:

  • Research into the peopling of the Americas is being delayed. 1999 Owsley Affidavit at ¶ ¶ 3-4; Docket No. 212.
  • In 1999 Dr. Jantz recognized the need to being synthesizing his research and views. He cannot effectively do so without access to the Kennewick Man skeleton. 1999 Jantz Afidavit ¶ 4; Docket No. 213.
  • Dr. Gill's comparative study of the early New World skeletal remains is incomplete. Having adequate data on range of variation is a platform on which other study of all higher level issues is built. 1999 Gill Affidavit at ¶ 4; Docket No. 215.
  • Denial of access to the skeleton caused Dr. Steele to turn to other research issues, and has delayed his efforts to publish results of his research. 1999 Steele Affidavit at ¶ 12; Docket No. 211; 1999 Brace Affidavit at ¶6; Docket No. 216.
  • Denial of access to the skeleton affects teaching responsibilities. One of the functions of a senior professor is to guide student training by ensuring they are well grounded in the critical information needed to understand a field of study. Scholars are affected in their ability to generate new ideas and questions for research. 1999 Steele Affidavit at ¶ 11; 1999 Gill Affidavit at ¶ 6; 1999 Brace Affidavit at ¶ 9.
  • Denial of access has led directly to the loss of research funding. 1999 Brace Affidavit at ¶ 7.
  • Lack of access to this skeleton impacts plaintiffs' ability to generate and test new ideas and to develop new avenues for research. 1999 Jantz Affidavit at ¶ 17; 1999 Brace Affidavit at ¶ 4.
  • Lack of verified data on the skeleton leaves a major gap in plaintiffs' database. 1999 Jantz Affidavit at ¶ 3; 1999 Gill Affidavit at ¶ 5.
  • Without access to the skeleton, plaintiffs cannot respond effectively to interpretations being published by the government's investigators and their students. 2001 Jantz Affidavit (Docket No. 421); 2002 Jantz Affidavit at ¶ 6.

Dr. Haynes is 74 and retired from full time teaching. Dr. Brace will shortly see his 72nd birthday. Dr. Jantz is 62. Dr. Bonnichsen will be 62 in a few weeks. Dr. Steele is 61 and has retired from active teaching. Dr. Gill is 61. Dr. Stanford is 59. Dr. Owsley is 51. Each of the plaintiffs has devoted his life's work to the types of studies involved here, and for many of them time is growing short. The lead time for the preparation of peer-reviewed articles can approach two years, and the time needed to write and publish scholarly books is even longer. 1999 Jantz Affidavit at ¶ 10. Research projects can take five to ten years (or more) to design, fund and complete. 2002 Bonnichsen Affidavit at ¶ 6. It is no answer to plaintiffs that Claimants do not want study to occur. For some of the plaintiffs, two or three more years of delay could mean that their life's work will never be completed. The court cannot give these plaintiffs back the six years that they have already lost in their efforts to study this skeleton. The court can, however, see that six years does not turn into eight, nine, or ten years.

NAGPRA was supposed to represent a balance between the interests of Native Americans, museums, scientists and other parties who have an interest in American history and prehistory. That balance will be upended if study of the Kennewick Man skeleton is deferred once again because of a claim as tenuous as that of the Claimants. NAGPRA was not intended to prevent study of skeletal remains in circumstances such as these, and nothing in the court's rulings is this case implies otherwise. The court did not previously deny plaintiffs' study requests as Claimants contend. Memorandum at 5. On the contrary, the court ordered the government to take a fresh look at plaintiffs' requests and not to dismiss them as peremptorily as before. That order was ignored.


Claimants' arguments offer nothing new; they raised the same issues in their amicus briefing and the court has already considered each one, and rejected each one. They fail now to raise any serious questions about the correctness of the court's opinion, nor do they explain how the objectives of NAGPRA will be furthered by denying study of a skeleton that has no demonstrated relationship to modern Native Americans. Nothing in the administrative record would lead any reasonable person to conclude that Claimants have met their burden of proving that they are culturally related to Kennewick Man.

Claimants have also failed to demonstrate that there is any reasonable likelihood the Ninth Circuit will disagree with the careful analysis this court did over a span of more than a year. If anything, intervening case law since this case was argued and decided reinforces that this court properly vacated the second administrative determination.

Nor do Claimants present a sufficient argument to permit the court to conclude that the balance of hardships tips sharply in their favor. Instead, further delay which could easily exceed two years will likely result in some of the plaintiffs never completing the work of decades of study. It will dramatically slow progress in an important area of scholarship. It will affect countless students. It will compound an already unconscionable delay in work on one of the most significant discoveries of the last several decades. Claimants' motion for a stay pending appeal should be denied.

DATED this __ day of November, 2002.



Paula A. Barran, OSB No. 80397
Telephone: (503) 228-0500



Alan L. Schneider, OSB No. 68147
Telephone: (503) 274-8444

Attorneys for Plaintiffs

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