Federal Defendants' Response To Plaintiffs' Motion For Clarification
Lois J. Schiffer
FOR THE DISTRICT OF OREGON
ROBSON BONNICHES, et al., Plaintiffs
UNITED STATES OF AMERICA, et al., Defendants
Federal Defendants' Response To Plaintiffs Motion For Clarification
As this court stated in its order of September 21, 1999, as amended by the March 8, 2000 order and as the federal defendants' stated in their Motion to Modify the September 21, 1999 Scheduling Order To Allow For Time To Do Additional DNA Analysis, filed February 1, 2000, the federal defendants will by September 24, 2000 complete the DNA analysis, undertake additional consultation with the tribes, make a determination as to cultural affiliation and, at that time, provide plaintiff-scientists with a final answer to their request to study. Until then, the federal defendants cannot give more than abstract answers to plaintiffs' abstract questions.
Plaintiffs assert that they are merely requesting answers to 'policy and legal questions' Plntffs' Motion For Clarification at 2. To the extent that that is all they are seeking, the Department of the Interior and the U.S. Army Corps of Engineers previously have answered plaintiffs' questions. Plaintiffs ask first whether they will be permitted to study the Kennewick Man skeleton if the remains cannot be culturally affiliated to a modern day tribe and second, whether they will be permitted to study if the remains are determined not to be Native American under NAGPRA. Plntiffs' Motion For Clarification at 2. The federal defendants below reiterate their previous answers to these questions.
First, the federal defendants are in the process of determining whether these human remains are culturally affiliated to a present day tribe or tribes. If the human remains are found to be culturally affiliated, then any request to study must be made to the appropriate tribe. 25 U.S.C. 3002(c); 25 U.S.C. 3005(b). If no cultural affiliation determination is made, it is possible that the U.S. Army Corps of Engineers may allow some study depending on the outcome of the earlier studies and the information collected in the cultural affiliation investigation. See Federal Defendants' Response To Plaintiffs' Motion For Immediate Response Re: Study Request, filed August 13, 1999 at 11. As this juncture, the agency cannot state with finality whether or not the plaintiffs will be permitted to undertake the studies they have proposed.
Second, on January 12, 2000, the Department of the Interior found these human remains to be "Native American" as defined by NAGPRA. See Federal Defendants' Notice of Radiocarbon Results and Notice of Determination That the Human Remains Are Native American, filed January 12, 2000. Again, as was previously stated, had the human remains not been "Native American," as defined by NAGPRA, the U.S. Army Corps of Engineers may have permitted some study. See Federal Defendants' Response To Plaintiffs' Motion For Immediate Response Re: Study Request, filed August 13, 1999 at 11-12; see also Letter from Dr. Francis P. McManamon, Consulting Archeologist, U. S. Department of the Interior, to Lieutenant Colonel Curtis, United States Army, Corps of Engineers, Re: Answers To Seventeen Questions at Question 12, December 23, 1997, filed as Exhibit 5 to Federal Defendants' Second Quarterly Status Report, January 5, 1998 (explaining that if human remains are not subject to NAGPRA, ARPA applies as long as the remains are older than 500 years and found on federal land. ARPA permits study under certain circumstances.).
However, to the extent plaintiffs are seeking an answer detailing precisely which studies they will be permitted to undertake in: (1) the hypothetical event that they prevail in their challenge to the Department of the Interior's interpretation of the statutory term "Native American" and thus possibly reversing the agency's determination that these human remains are not "Native American" and subject to NAGPRA, or (2) the hypothetical situation that the federal defendants determine that these remains are not culturally affiliated to a present day tribe, the federal defendants' cannot provide the answers they seek until it has completed its administrative process and has before all of the information necessary to make a final determinations.
Plaintiffs' reasons for needing these academic answers now are unconvincing. Plaintiffs first assert that DNA testing is not necessary for the cultural affiliation determination and therefore the federal defendants should now be able to respond to the request to study. That is incorrect. First, as the federal defendants stated in the Motion For Modification Of The September 21, 1999 Scheduling Order at 2, these DNA studies will assist the agency in its determination of cultural affiliation. See also Reply Brief at 3-4. To the extent that plaintiffs disagree with that conclusion, they may challenge it once there is final agency action and the case is ripe for review. Bennett v. Spear, 520 U.S. 154 (1997); See also FTC v. Standard Oil Co., 449 U.S.232, 241 (1980) (noting that the action must be a definitive statement of the agency's position with concrete legal consequences). They cannot circumvent the finality requirement by deciding themselves what they deem necessary for a final decision.
Plaintiffs also urge that the Department of the Interior's definition of "Native American" is arbitrary and capricious because it relies solely on the chronological record. It is unclear how this possible legal challenge requires the federal defendants to respond to the request to study now. As above, this is a legal challenge to the merits of the agency decision that is appropriately brought once there is final agency action and the issue is ripe for review. Ohio Forestry Association v. Sierra Club, 118 S. Ct. 1670 (1998).
Finally, plaintiffs urge that they must know these answers so that they can prepare for litigation. The solution is not to provide plaintiffs with an abstract answer for the plaintiffs to assume that it is possible that they request to study may be denied and to contingently prepare for that possible outcome.
On September 34, 2000 the cultural affiliation will be completed and plaintiff scientists will have answers to their requests to study. Once the administrative process is complete, the federal defendants will have before them all the information necessary to make final decisions and the plaintiffs will know whether or not their request to study was granted or denied and on what basis. Until that time, it would be helpful if, instead of attempting to divert the agency from completing those tasks, plaintiffs permitted the agency to do the work it takes to give them the answers that they say they want.
Dated this 27th day of March, 2000.
Lois J. Schiffer
(signed) by ts
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