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Plaintiffs' Amended Complaint
Paula A. Barran, OSB No. 80397
e-mail: pbarran@barran.com
BARRAN LIEBMAN LLP
601 S.W. 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
IN THE UNITED STATE DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBSON BONNICHSEN, C. LORING BRACE; GEORGE W. GILL, C. VANCE
HAYNES, JR., RICHARD L. JANTZ, DOUGLAS W. OWSLEY, DENNIS J. STANFORD
and D. GENTRY STEELE,
Plaintiffs,
v.
UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, U.S. DEPARTMENT OF THE INTERIOR, NATIONAL
PARK SERVICE, FRANCIS P. McMANAMON, ERNEST J. HARRELL, WILLIAM
E. BULEN, JR., DONALD R. CURTIS, LEE TURNER, LOUIS CALDERA, BRUCE
BABBITT, DONALD J. BARRY, CARL A. STROCK, and JOE N. BALLARD,
Defendants.
Civil Case No. 96-1481-JE
AMENDED COMPLAINT
JUDICIAL REVIEW OF AGENCY ACTION; DEPRIVATION OF CONSTITUTIONAL
RIGHTS; VIOLATION OF NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION
ACT, NATIONAL HISTORIC PRESERVATION ACT, FREEDOM OF INFORMATION
ACT, ARCHEOLOGICAL RESOURCES PROTECTION ACT, DECLARATORY JUDGMENT
ACT; REQUEST FOR INJUNCTIVE RELIEF, MANDAMUS AND FOR ATTORNEY
FEES
Plaintiffs, for their first amended complaint, allege as follows:
NATURE OF THE ACTION
1. Plaintiffs, by this first amended complaint, seek judicial
review pursuant to the Administrative Procedure Act (5 U.S.C.
§ 702 et seq.) of decisions of the Department of the Army,
the U.S. Army Corps of Engineers (the "Army Corps"),
the Department of the Interior ("DOI") and the National
Park Service ("NPS"), and further assert claims based
on violations of the Native American Graves Protection and Repatriation
Act of 1990 ("NAGPRA," 25 U.S.C. § 3001 et seq.),
the National Historic Preservation Act (the "NHPA,"
16 U.S.C. § 470 et seq.), the Archeological Resources Protection
Act ("ARPA," 16 U.S.C. § 470 aa et seq.), the
Freedom of Information Act ("FOIA," 5 U.S.C. §
552 et seq.), and the First and Fifth Amendments of the United
States Constitution. Plaintiffs also seek declaratory relief
under NAGPRA, the NHPA, ARPA and the Declaratory Judgment Act
(28 U.S.C. § 2201 et seq.), mandamus pursuant to 28 U.S.C.
§ 1361, injunctive relief, and their reasonable attorney
fees pursuant to the Equal Access to Justice Act, 28 U.S.C. §
241(d), the NHPA, 16 U.S.C. § 470w-4, ARPA, 16 U.S.C. §
470, FOIA 5 U.S.C. § 552 (a)(4)(E), and 42 U.S.C. §
1988.
2. This action relates to the human skeletal remains discovered
in July 1996 in eastern Washington commonly known and referred
to herein as "Kennewick Man." The Kennewick Man remains
are the subject of, among other things, a Notice of Intent to
Repatriate Human Remains published by the Army Corps on or about
September 17, 1996, numerous orders and two published opinions
of the United States District Court for the District of Oregon
(reported at Bonnichsen v. U.S. Dept. of Army, et al., 969 F.
Supp. 614 (D. Or. 1997) and Bonnichsen v. U.S. Dept. of Army,
et. al., 969 F. Supp. 628 (D. Or. 1997)), and a letter of final
determination dated September 21, 2000 from the Secretary of
the Interior, and U.S. Army Corps of Engineers, Response to Requests
for Scientific Study - Kennewick Man Human Remains dated September
22, 2000.
JURISDICTION
3. The Court has jurisdiction to resolve these claims involving
questions of federal law pursuant to 28 U.S.C. §§ 1331,
1343(4) and 1361; NAGPRA, 25 U.S.C. § 3013, the NHPA, 16
U.S.C. § 470 et seq., ARPA, 16 U.S.C. § 470 aa et seq.,
the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.,
and the First and Fifth Amendments of the United States Constitution.
VENUE
4. Venue is proper in the District of Oregon pursuant to the
provisions of 28 U.S.C. § 1391. Plaintiff Robson Bonnichsen
is a resident of Oregon. Some of the agency decisions at issue
in this matter were made or approved by the Army Corps North
Pacific Division headquartered in Portland, Oregon, and the DOI
and NPS pursuant to an inter-agency agreement. Further, claims
to the Kennewick Man remains are made by a coalition of Indian
tribes and bands that includes an Indian tribe headquartered
in the District of Oregon. Accordingly, a substantial part of
the events and omissions giving rise to plaintiffs' claims occurred
in the District of Oregon.
PARTIES
5. The plaintiffs are scholars and teachers. They are renowned
scientists who have devoted their professional careers to education,
scholarly research and writing in the area of archaeology, geology,
physical anthropology and the study of human evolution. Plaintiffs
represent various scientific specialties related to the study
of ancient peoples. The ability of plaintiffs to carry on their
professions has been and will be adversely affected by the decisions
of the defendants.
6. Robson Bonnichsen is the Director of the Center for the Study
of the First Americans at Oregon State University in Corvallis,
Oregon. His professional career has been devoted to investigating
questions concerning the initial peopling of the Americas, and
he is the director of Oregon State University's molecular archaeology
program.
7. C. Loring Brace is Curator of Biological Anthropology at the
Museum of Anthropology, University of Michigan, and professor
of anthropology in the Department of Anthropology, University
of Michigan. Dr. Brace's expertise and studies involve the assessment
of human remains in terms of their relationships to other North
American indigenous people and to Asian populations.
8. George W. Gill is a professor of anthropology at the University
of Wyoming. He is a former Chairman of the Physical Anthropology
Section of the American Academy of Forensic Sciences and has
made a lifetime study of ancient human remains.
9. C. Vance Hanes, Jr. is a retired Regents Professor, Department
of Anthropology and Geoscience, at the University of Arizona.
He is a geoarchaeologist and a member of the National Academy
of Sciences who has spent his career studying questions related
to the initial peopling of the Americas.
10. Richard L. Jantz is a professor with the Department of Anthropology
at the University of Tennessee in Knoxville.
11. Douglas W. Owsley is the division head for physical anthropology
of the Smithsonian Institution's National Museum of Natural History.
Drs. Jantz and Owsley have developed a specialized protocol
for measuring and documenting human skeletal remains; such measurements
are recorded in a computer database which permits various comparisons
to be made between modern and ancient populations which would
not otherwise be possible.
12. Dennis J. Stanford is a curator/research scientist of the
Department of Anthropology at the Smithsonian Institution, and
is director of the Smithsonian's Paleo-Indian Program.
13. D. Gentry Steele is a Professor of Anthropology at Texas
A&M University and is an expert in the study and comparison
of human skeletal remains from North American paleo-periods.
14. Defendants are agencies and agents of the United States which
have custody of the Kennewick Man remains, which have made various
decisions concerning curation, study and repatriation of the
Kennewick Man remains, which have made various decisions about
investigation and alteration of the site where the remains were
discovered (the "discovery site"), and which have refused
to release documents and other information pertaining to the
remains and discovery site.
15. Defendant DOI is an agency of the United States that made
certain decisions and final determinations pertaining to the
Kennewick Man remains pursuant to an inter-agency agreement with
the Army Corps and otherwise. DOI's actions relating to the
skeleton and its discovery site were conducted in part through
defendant NPS, one of numerous bureaus within the DOI.
16. Defendant Bruce Babbitt was at all times relevant the
U.S. Secretary of the Interior. Among other things, Secretary
Babbit made certain determinations pertaining to the Kennewick
Man remains.
17. Defendant Louis Caldera was at all times relevant the
Secretary of the Army, had authority to and, upon information
and belief, did control and direct the actions of the Army Corps.
18. Defendant Donald J. Barry was at all times relevant an
Assistant Secretary of the Interior. Mr. Barry participated
in decisions made by other defendants relating to the Kennewick
Man remains.
19. Defendant Francis P. McManamon was at all times relevant
an employee of the National Park Service and Departmental Consulting
Archeologist of DOI. Dr. McManamon made various decisions and
participated in decisions made by other defendants relating to
the Kennewick Man skeleton and its discovery site.
20. Defendant Major General Ernest J. Harrell is or was the
Commander of the North Pacific Division of the Army Corps of
Engineers, headquartered in Portland, Oregon, having responsibility
for the agency's decisions in the Pacific Northwest including
Eastern Washington.
21. At various times relevant herein defendants Joe N. Ballard,
William E. Bulen, Jr., Donald R. Curtis and Lee Turner were representatives
of the U.S. Army Corps of Engineers, with offices in Washington
D.C., and Walla Walla, Washington, and were the individuals who
had then the most immediate right to direct the control, custody
and investigation of the Kennewick Man remains and the discovery
site prior to and after June 27, 1997.
THE KENNEWICK MAN REMAINS
22. The Kennewick Man remains were discovered in July 1996 in
and along the bed of the Columbia River near Richland, Washington.
Kennewick Man is believed to be over 9,000 years old. Kennewick
Man was, when initially discovered and retrieved, an almost complete
skeleton of a human male bearing features and characteristics
that do not closely resemble any present day population group.
23. Kennewick Man represents a rare discovery of national
and international scientific significance. It is one of the
oldest, most complete and best preserved skeletons discovered
in North America. It is the oldest substantially complete human
skeleton found to date in the Pacific Northwest. Human skeletal
remains that are 9,000 years old are extremely rare. Kennewick
Man represents a national treasure which if properly studied
can provide information important to an understanding of the
peopling of the Americas and human evolution in general.
24. Plaintiffs have made numerous requests for an opportunity
to have access to Kennewick Man for purposes of study, analysis,
publication and teaching. Such requests have been denied. A
reliable determination of whether the skeleton is Native American
within the meaning of NAGPRA cannot be made without comprehensive
study of the skeleton by scientists who are experts in all appropriate
disciplines. If the skeleton is Native American, a reliable
determination of whether it is from an individual who is culturally
affiliated to any present Indian tribe or a band under NAGPRA
cannot be made without such studies. The studies conducted under
defendants' control and direction are not adequate to resolve
these questions, and defendants have restricted peer review or
other scientific work that could validate, or invalidate, their
studies.
25. On or about September 17, 1996, defendants, or some of
them, gave public notice of their intent to transfer possession
of the Kennewick Man and publicly stated a conclusion that the
Kennewick Man bore a relationship of shared group identity which
can be reasonably traced between the remains and five named Columbia
Basin tribes and bands.
26. The September 17, 1996 notice to transfer possession of
the Kennewick Man was issued under color of NAGPRA. Such notice
was contrary to the provisions of NAGPRA, and was issued without
according plaintiffs their statutory or their First and Fifth
Amendment rights guaranteed by the Constitution.
27. Plaintiffs commenced this action by a complaint filed
on October 16, 1996. By Order dated June 27, 1997, this Court
vacated the decisions of the Army Corps and remanded the matter
to the Army Corps for complete re-consideration, and directed
that the Army Corps "critically examine all of the evidence
in the record as a whole, and make specific findings that are
supported by reliable evidence." The Order further directed
that the remains shall continue "to be stored in a manner
that preserves their potential scientific value," and that
the Army Corps "proceed expeditiously" so as to resolve
the issues "in a timely manner."
28. Defendants have not complied with the Court's order on remand,
have not proceeded expeditiously, and have failed to resolve
the issues in a timely manner. Defendants' noncompliance and
delay have adversely affected the plaintiffs and the preservation
of the Kennewick Man remains.
29. Defendants have also failed to store the Kennewick Man remains
in a manner that adequately preserves their potential scientific
value.
30. On September 25, 2000, defendants made three final decisions:
(a) that the Kennewick Man skeleton is Native American within
the meaning of NAGPRA; (b) that it is culturally affiliated to
a coalition of five Columbia River tribes and bands that claim
it; and (c) that plaintiffs will not be allowed to study the
skeleton. Those three final decisions (hereinafter referred
to collectively as the "Remand Decisions") are arbitrary
and capricious, contrary to law and in violation of plaintiffs'
First and Fifth Amendment rights. Among other things: (a) defendants
did not take reasonable efforts to collect all available relevant
evidence; (b) defendants refused to allow plaintiffs to participate
in defendants' administrative proceedings; (c) defendants failed
to evaluate and consider all of the available evidence; (d) defendants
failed to make specific findings that are supported by reliable
evidence; (e) defendants misinterpreted and misapplied relevant
provisions of law including NAGPRA; (f) defendants acted in ways
that exceeded the powers accorded to them by Congress; and (g)
defendants acted in a biased manner and in violation of plaintiffs'
Constitutional and statutory rights.
31. Unless otherwise restrained, defendants will transfer possession
of the Kennewick Man to representatives of the coalition who
will immediately bury the remains and prohibit any further study
of the remains.
32. Should the remains be transferred to tribal claimants, plaintiffs,
students, the scientific community and the public generally will
suffer irreparable harm in the following ways:
(a) Only a few other skeletons recovered in the Americas are
as old as or older than Kennewick Man and most of these are poorly
preserved. Transfer of the skeleton will deprive scholars and
students of the opportunity and right to study this treasure.
Study of the skeleton would be of major benefit to the United
States.
(b) Kennewick Man can provide information about the earliest
people in the Americas, including their health, way of life and
ancestry. A better understanding of the earliest New World human
populations is an issue of great importance to all peoples including
Native Americans in the United States, Canada, Mexico, Central
and South America. The studies of the skeleton that were conducted
for defendants do not provide all of the relevant information
that can be learned from the skeleton, and in any event have
not been verified by other scientists. Deprivation of the opportunity
and right to study Kennewick Man will preclude his descendants,
if any such descendants exist today, of knowledge about their
ancestry.
(c) Proper study of the skeleton will permit a quantitative and
qualitative assessment of its biological similarity to other
North American and world populations. Without comprehensive
scientific study, Kennewick Man cannot be reliably compared to
other ancient and/or modern populations.
(d) Study of Kennewick Man can provide information about the
health of early peoples of this country and the antiquity of
various diseases, which can contribute to modern day health science.
(e) If plaintiffs are prevented from examining the Kennewick
remains, their ability to teach, to write, to publish scholarly
papers and to develop and test concepts concerning the peopling
of the America and human evolution will be adversely affected.
Plaintiffs and others have been harmed by defendants' continuing
refusal to give them access to study the skeleton, and by defendants'
control over the remains and information about them.
INTENTIONAL DESTRUCTION OF THE KENNEWICK MAN DISCOVERY
SITE
33. In the Spring of 1998, despite objections and while this
litigation was pending, the Army Corps proceeded with a project
to alter the discovery site. Among other things, this project
caused the discovery site to be covered under approximately 500
tons of rock, dirt and organic material. Trees also were planted
on certain portions of the site.
34. Defendants' site project has foreclosed meaningful geoarchaeological
excavation and data recovery at the discovery site, and has or
may have damaged cultural items and remains located at the site.
Defendants have prevented needed scientific investigations that
may have yielded information about the Kennewick Man or his people.
This intentional reburial constituted spoliation of evidence
and had the purpose or effect of limiting plaintiffs' ability
to challenge defendants' conduct or decisions about the remains.
PLAINTIFFS' FOIA REQUESTS
35. Plaintiffs have made six separate FOIA requests seeking documents
containing information pertaining to Kennewick Man, the discovery
site, and certain actions of the defendants relating to Kennewick
Man and the discovery site. Among other things, the documents
requested by plaintiffs were needed to monitor and, to the extent
possible, contribute information to defendant agencies.
36. The status of each such FOIA request is as follows:
(a) Plaintiffs' August 13, 1997 request directed to the Army
Corps, Walla Walla District, was denied on September 17, 1997.
An appeal from that denial was taken on November 12, 1997.
The appeal has not been decided.
(b) On April 24, 1998, plaintiffs sent a second FOIA request
to the Army Corps, Walla Walla District. The Army Corps produced
some documents in response to this request on July 10, 1998.
Objections to the Army Corps' response were served on the Army
Corps on July 20, 1998, and an appeal was filed on September
1, 1998. The appeal has not been decided.
(c) A third FOIA request was directed at the Army Corps, Walla
Walla District on July 10, 1998. The Army Corps produced some
documents in response to this request on July 10, 1998. Objections
to the Army Corps' responses were served on the Army Corps on
July 20, 1998, and an appeal was filed on September 1, 1998.
The appeal has not been decided.
(d) A fourth FOIA request was directed to DOI and the Army Corps,
Walla Walla District, on November 24, 1998. The Army Corps and
DOI did not produce the documents within the period set by law
or otherwise properly respond to that request within the time
set by law. No appeal was filed.
(e) A fifth request was directed to the Army Corps, Walla Walla
District, on March 8, 1999. The Army Corps did not produce the
documents requested or otherwise properly respond to that request
within the period set by law. No appeal was filed.
(f) A sixth FOIA request was directed to the Army Corps, Walla
Walla District on October 24, 2000. As of the date of this complaint,
the Army Corps has not produced all of the documents requested,
or otherwise properly responded to that request within the period
set by law.
FIRST CLAIM FOR RELIEF
(Judicial Review Under Administrative Procedure Act)
37. Plaintiffs have standing to seek judicial review under the
Administrative Procedure Act, 5 U.S.C. § 701 et seq. because
they are persons suffering a legal wrong or are adversely affected
or aggrieved by agency action, as defined in 5 U.S.C. §
702.
38. After the Army Corps took possession of Kennewick Man, plaintiffs
and other representatives of the scientific community advised
defendant Corps that its decision to give the skeleton to the
claimant tribes was incorrect, and they requested an opportunity
to conduct scientific studies of Kennewick Man. Their requests
were not granted.
39. Plaintiffs are the prevailing parties with respect to the
Court's June 27, 1997, decision vacating all decisions made by
defendants up to that date. Plaintiffs are entitled to their
reasonable costs and attorney fees through June 27, 1997.
40. Defendants' Remand Decisions are unlawful and should be set
aside on the following grounds:
(a) They are arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(b) They are contrary to plaintiffs' Constitutional rights of
due process;
(c) They are contrary to plaintiffs' Constitutional rights of
equal protection;
(d) They are contrary to plaintiffs' rights to free speech and
freedom from an establishment of religion as guaranteed by the
First Amendment;
(e) They are in excess of defendants' statutory jurisdiction,
authority or limitation;
(f) They were made without observance of procedures required
by law;
(g) They are unsupported by substantial evidence or unwarranted
by the facts;
(h) They are based upon an erroneous interpretation of governing
law;
(i) They are inconsistent or with contrary to the Court's order
of June 27, 1997; and
(j) They are biased and resulted from defendants' prejudgment
of issues and/or desire to suppress legitimate scientific inqury.
41. Plaintiffs seek judicial review of the above Remand Decisions
and ask this Court to decide relevant questions of law, interpret
Constitutional and statutory provisions, to hold unlawful and
vacate the Remand Decisions, and to grant plaintiffs the other
forms of relief specified below.
42. Plaintiffs are further entitled to their reasonable attorney
fees after June 27, 1997 pursuant, inter alia, to the Equal Access
to Justice Act, 28 U.S.C. § 2412(d).
SECOND CLAIM FOR RELIEF
(Violation of NAGPRA)
43. Plaintiffs incorporate by reference herein all of the
allegations of paragraphs 1 through 34 above.
44. Plaintiffs bring this claim pursuant to 25 U.S.C. §
3013, which establishes a private right of action for judicial
review of and to oppose any violation of NAGPRA.
45. Defendants have violated NAGPRA in one or more of the following
particulars:
(a) In interpreting NAGPRA and its provisions;
(b) In determining that the Kennewick Man skeleton is the human
remains of a Native American as that term is defined by the statute;
(c) In determining that Kennewick Man is culturally affiliated
to the five Columbia River Plateau tribes and bands that have
claimed the skeleton;
(d) In failing to conduct impartial, fair and objective proceedings
for evaluation and disposition of the skeleton;
(e) In excluding plaintiffs from meaningful participation in
defendants' administrative proceedings;
(f) In granting claimant tribes opportunities to participate
in defendants' administrative proceedings that were not afforded
to plaintiffs;
(g) In failing to consider all relevant available evidence concerning
the skeleton;
(h) In denying plaintiffs' requests for scientific study of the
skeleton, the outcome of which could have provided information
relative to defendants' decisions;
(i) In disregarding the Court's prior directives concerning resolution
of the issues involved in this case; and
(j) In disregarding the conclusions and advice of their own
experts.
46. NAGPRA as applied and interpreted by defendants:
(a) is overly broad and impermissibly vague;
(b) is contrary to the intent of Congress;
(c) is contrary to ARPA and other federal law and policies;
(d) violates plaintiffs' First Amendment rights to freedom from
establishment of religion in that NAGPRA has been used to deprive
plaintiffs of access to Kennewick Man and information about the
skeleton for reasons based on religious beliefs and doctrines;
(e) violates plaintiffs' First Amendment rights to freedom
of speech and access to information in that NAGPRA has been used
to deny plaintiffs access to Kennewick Man and information about
the skeleton for purposes of study, publication, teaching and
scholarly debate;
(f) violates plaintiffs' Fifth Amendment rights to due process
in that NAGPRA has been used to deny plaintiffs fair, objective,
and impartial proceedings with respect to defendants' decisions
relating to the Kennewick Man remains, and by denying plaintiffs
the opportunity to study the skeleton, and to have access to
information about the skeleton.
47. Plaintiffs seek judicial review and declaratory and injunctive
relief from this Court declaring that the actions of defendants
are unlawful and in violation 25 U.S.C. § 3001 et seq.,
and seek an order enjoining them and others acting in concert
with them from depriving plaintiffs of access to Kennewick Man,
and from transferring possession of Kennewick Man to the five
tribes and bands that have claimed the skeleton.
THIRD CLAIM FOR RELIEF
(Violation of the NHPA)
48. Plaintiffs incorporate by reference herein the allegations
of paragraphs 1 through 34 above.
49. Plaintiffs bring this claim pursuant to 16 U.S.C. §
470w-4, which establishes a private right of action for judicial
review of and to oppose any violation of the NHPA, 16 U.S.C.
§ 470 et seq.
50. Defendants' site project was inappropriate given the prevailing
circumstances and the need to conduct further geoarchaeological
investigations at the site. Defendants failed to exercise reasonable
care in their development and implementation of the project,
and they failed to consult with plaintiffs as required by NHPA
and its implementing regulations. The site project has destroyed
or rendered unavailable potentially important information about
the processes that formed and modified the site over time and
about the taphonomic history of the skeleton. Defendants failed
to disclose relevant information to the Office of Archaeology
and Historic Preservation of the State of Washington and to the
National Advisory Council on Historic Places.
51. NHPA as applied and interpreted by defendants:
(a) is contrary to the intent of Congress;
(b) violates plaintiffs' First Amendment rights to freedom from
establishment of religion in that NHPA has been used to deprive
plaintiffs of access to the discovery site and information about
the discovery site for reasons based on religious beliefs and
doctrines;
(c) violates plaintiffs' First Amendment rights to freedom of
speech and access to information in that NHPA has been used to
deny plaintiffs access to the discovery site and information
about the discovery site for purposes of study, publication,
teaching and scholarly debate;
(d) violates plaintiffs' Fifth Amendment right of due process
in that the statute has been used or violated to deny plaintiffs
fair, objective and impartial proceedings with respect to the
discovery site and information about the discovery site, and
by denying plaintiffs the opportunity to study the discovery
site and to have access to information about the discovery site.
52. Plaintiffs seek judicial review and declaratory and injunctive
relief from this court declaring that the actions of defendants
are unlawful and in violation 16 U.S.C.§ 470 et seq., and
seek an order enjoining defendants and others acting in concert
with them from further violating the NHPA with respect to the
discovery site, and requiring that appropriate remedial measures
be taken. Plaintiffs have been required to engage counsel to
protect their rights as alleged herein and plaintiffs are entitled
to an award of reasonable attorney fees pursuant to 28 U.S.C.
§ 241(d).
FOURTH CLAIM FOR RELIEF
(Violation of ARPA)
53. Plaintiffs reallege the facts set out in paragraphs 1 through
34 above.
54. Plaintiffs bring this claim pursuant to 16 U.S.C. §
470aa, which establishes a private right of action for judicial
review of and to oppose any violations of ARPA, 16 U.S.C. §
470aa, et seq.
55. Defendants have violated ARPA and its regulations in one
or more of the following particulars:
(a) In failing to maintain the Kennewick Man remains "for
the benefit of the American people" and to foster the "exchange
of information between government authorities, the professional
archeological community, and private individuals" with respect
to the remains (16 U.S.C. § 470aa(b));
(b) In failing to make the Kennewick Man remains available for
appropriate scientific and educational purposes; and (c) In failing
to curate the skeleton in a manner reasonably designed to ensure
its long-term preservation and as needed to comply with the
Court's order of June 27, 1997.
56. Plaintiffs seek judicial review and declaratory and injunctive
relief from this Court declaring that the actions of defendants
are unlawful and in violation of 16 U.S.C. § 470aa, et seq.,
and seek an order enjoining them and others acting in concert
with them from further violating ARPA in their treatment and
curation of the skeleton, and requiring that immediate remedial
measures be taken.
FIFTH CLAIM FOR RELIEF
(Violation of FOIA)
57. Plaintiffs incorporate herein the allegations in paragraphs
1 through 36 above.
58. The Army Corps and, with respect to the November 24, 1998
request, the DOI have violated FOIA in the following respects:
(a) by failing to respond to plaintiffs' requests within the
time required by FOIA;
(b) by failing to decide plaintiffs' appeals within the time
required by FOIA;
(c) by failing to provide clear, precise and lawful reasons for
the denials of certain of the requests or portions of the requests
as required by FOIA;
(d) by denying certain of the requests or portions of the requests
for reasons that were arbitrary, capricious or contrary to law;
and
(e) by furnishing incomplete responses to certain of the requests
or portions of the requests, and by omitting information sought
in the requests without any legal justification for such omissions.
59. Plaintiffs seek judicial review and declaratory and injunctive
relief from this Court declaring that the actions of defendants
are unlawful and in violation of 5 U.S.C. § 552 et seq.,
and seek an order requiring them to provide plaintiffs with the
information and other documents requested by plaintiffs.
SIXTH CLAIM FOR RELIEF
(Declaratory Judgment Act)
60. Plaintiffs incorporate by reference herein the allegations
of paragraph 1 through 36 above.
61. Plaintiffs' First Amendment rights to freedom from establishment
of religion have been violated in that the decisions, actions
and omissions of defendants relating to Kennewick Man, the discovery
site and plaintiffs' requests for access to the same have been
based on the religious beliefs and doctrines of the tribes who
have claimed the skeleton.
62. Plaintiffs' First Amendment rights to freedom of speech and
access to information have been violated by defendants' refusal
to permit plaintiffs access to Kennewick Man, the discovery site
and information about both for purposes of study, publication,
teaching and scholarly debate.
63. Plaintiffs' Fifth Amendment rights of due process have been
violated by defendants' failure to conduct fair, objective and
impartial proceedings with respect to defendants' decisions relating
to the Kennewick Man remains and discovery site and with respect
to plaintiffs' requests for access to the skeleton, the discovery
site and information about both.
64. Plaintiffs seek declaratory and injunctive relief from this
Court declaring that the actions of defendants are unlawful and
in violation of plaintiffs' Constitutionally protected rights,
and an order enjoining them and others acting in concert with
them from depriving plaintiffs from access to Kennewick Man.
65. Defendants' actions and practices relating to storage, handling
and curation of the skeleton have been contrary to their obligations
under ARPA and its implementing regulations and under the court's
order of June 27, 1997. Among other things, defendants failed
to maintain a secure environment for the skeleton to protect
it from theft or loss, and to take reasonable and appropriate
precautions to protect the skeleton from deterioration. Defendants
have misrepresented, or failed to inform the Court of, relevant
facts concerning defendants' actions, practices and intentions
relating to the skeleton's curation.
66. Plaintiffs have been forced to engage counsel to protect
their rights as alleged above and are entitled to an award of
reasonable attorneys fees pursuant to 42 U.S.C. § 1988.
SEVENTH CLAIM FOR RELIEF
(Mandamus, 28 U.S.C. 1361 et seq.)
67. Plaintiff incorporate by reference herein the allegations
in paragraph 1 through 36 above.
68. Pursuant to 28 U.S.C. § 1361 the Court should issue
an order compelling defendants to permit plaintiffs immediate
access to the Kennewick Man remains for purposes of study publication,
teaching and scholarly debate.WHEREFORE, plaintiffs pray that
the court grant them a decree and order for declaratory, injunctive
and other relief as follows:
1. Declaring that the defendants' determinations that the Kennewick
Man remains be given to the five tribes and bands that have claimed
the skeleton are illegal, void and of no effect;
2. Enjoining defendants, each of them, and all others from transferring
possession of the Kennewick Man to any claimant under NAGPRA
until such claims have been properly verified to establish that
they comply with all applicable requirements of the law;
3. Enjoining defendants, each of them, and all others acting
in concert with them from depriving plaintiffs of access to Kennewick
Man;
4. Declaring that the Army Corps' alterations at the discovery
site were contrary to the NHPA, its regulations and procedures
appropriate for a site of this kind;
5. Enjoining defendants from further violations of NHPA with
respect to their future actions relating to the discovery site;
6. Requiring that defendants appoint a panel of three independent
scientists, including one nominated by plaintiffs, to issue a
report containing recommendations for any future actions that
may be needed for investigation and protection of the discovery
site;
7. Requiring that plaintiffs be allowed to review and submit
comments on the above report before it is made final;
8. Requiring that defendants make the above report and plaintiffs'
comments public in a manner reasonably designed to ensure that
the public and the scientific community will become aware of
the report and comments;
9. Declaring that the defendants' treatment and curation of the
skeleton has violated ARPA, its implementing regulations, and
the Court's order of June 27, 1997;
10. Requiring that defendants hire a panel of three independent
conservators, including one nominated by plaintiffs, to evaluate
defendants' current curation practices relating to the skeleton,
and to issue to the court a report containing recommendations
for future curation of the skeleton;
11. Requiring that plaintiffs be allowed to review and submit
comments on the above report before it is delivered to the Court,
and that plaintiffs' comments be attached to the final report;
12. Requiring that defendants allow plaintiffs access to the
Kennewick Man remains for purposes of conducting the studies
and tests requested by plaintiffs;
13. Declaring that:
(a) the actions of defendants are unlawful and in violation of
plaintiffs' Constitutionally protected rights, and issuing an
order enjoining them and others acting in concert with them from
depriving plaintiffs from access to Kennewick Man, the discovery
site and information regarding both;
(b) NAGPRA, as interpreted and applied by defendants, is unlawful
and in violation of plaintiffs' constitutionally protected rights;
(c) NHPA, as interpreted and applied by defendants, is unlawful
and in violation of plaintiffs' constitutionally protected rights;
and
(d) Declaring that the Army Corps, the Department of the Army
and the DOI are in violation of their obligations under FOIA
with respect to plaintiffs' requests for information.
14. Ordering the Army Corps, the Department of the Army and the
DOI to provide plaintiffs with the information and documents
requested by plaintiffs;
15. For plaintiffs' costs and disbursements herein together with
their reasonable attorneys fees for prosecuting this action pursuant
to 28 U.S.C. § 241(d), 16 U.S.C. § 470w-4, 16 U.S.C.
552(a)(4)(E) and 42 U.S.C. § 1988.
16. For such further relief and other relief as this Court may
deem just.
DATED this 2nd day of January, 2001.
ALAN L. SCHNEIDER, PC
By ____________________________________
Alan L. Schneider, OSB No. 68147
BARRAN LIEBMAN LLP
By____________________________________
Paula A. Barran, OSB No. 80397
Of Attorneys for Plaintiffs
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