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The Kennewick Man Case | Court Documents | Communications with the Court

Plaintiffs' Opposition to Motion 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




Plaintiffs- Appellees,






CV. 96-1481-JE

Case No. 02-35970

(D.C. NO. 96-1481 JE)



The prerequisites for obtaining a stay pending appeal are justifiably rigorous and Intervenors have not met them. A stay is "an exceptional response," United States v. Hamilton, 963 F.2d 322, 323 (11th Cir. 1992), and requires a strong showing that the applicant's legal arguments are well founded and that the applicant's interests are seriously at risk. Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983); later proceeding 463 U.S. 1328. The court must also evaluate the public interest in part to ensure that it does not overly favor an applicant's narrow personal interests even if the applicant meets the other requirements.

Any consideration of these factors requires that the Intervenors' motion be denied. They have not shown 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. That is a particularly important issue in this case which involved six years of litigation, two agency decisions that were vacated (one following a remand with instructions the agency did not follow), appearances by many Amici, and a full study of the 22,000 page record by the District Court Judge.

Intervenors made this same request to stay to Judge Jelderks. He evaluated the request as carefully as he did the underlying record, and he denied it. This court should too.


The decision at issue in this appeal was the culmination of six years of litigation over the 9,000 year old human remains which became known as the "Kennewick Man." On August 30, 2002, the District Court vacated for a second time a decision of the Secretary who had decided to repatriate the skeleton to a coalition of claiming tribes and an unrecognized band.

When the Kennewick Man skeleton was discovered by accident in July 1996, it attracted enormous attention. It was initially believed to be European because of its physical features. Radiocarbon dating, however, showed the remains to be between 8,340 and 9,200 calendar years old. Human skeletons this old are extremely rare in the Western Hemisphere, and most found to date are highly fragmented, whereas this skeleton was nearly complete.

The Army Corps of Engineer (the "Corps") seized the remains and quickly decided that they would be repatriated to Tribal Intervenors. The notice of intent to repatriate cited inaccurate reasons for the repatriation. After efforts to persuade the Corps to reconsider its decision or delay the transfer, plaintiffs filed suit in the United States District Court for the District of Oregon to prevent the transfer of the remains and secure permission to study them. In June 1997, the District Court vacated the decision of the Corps to repatriate the remains and remanded the issues for further proceedings with a directive "to fully reopen this matter, to gather additional evidence, to take a fresh look at the legal issues involved" and then to reach a decision that was based on all the evidence. The District Court concluded, based on a thorough examination of the record, that the Corps' decision making procedure was flawed and that it had issued a premature decision which assumed facts that proved to be erroneous and failed to provide a satisfactory explanation for its actions. See, Bonnichsen v. United States, et al., 969 F. Supp. 628 (D. Or. 1997). During the years that followed, the District Court had to intervene to order that the remains be transferred to a different facility so that they could be curated properly. It also had to intervene to ensure that the skeleton was properly inventoried, and to require that the federal defendants timely complete its second round of administrative proceedings.

Following the 1997 remand, the federal defendants engaged in a number of activities that guaranteed plaintiffs would not have an opportunity to participate in the administrative process. The decision makers had direct contacts with the claiming tribes, including many face-to-face meetings and telephone conferences, while plaintiffs' efforts to learn about the ongoing process were rebuffed. The District Court found that the decision makers secretly furnished Intervenors with advance copies of documents and allowed Intervenors to rebut those reports before the administrative record closed, secretly met Intervenors at a critical time in the decision making process, secretly notified Intervenors of the issues being considered and refused to allow plaintiffs to see important reports until after the decision was final. On at least one occasion, the government coached Intervenors on evidence believed to be necessary to supplement the record.

More than three years after the original remand, the federal defendants announced a final decision which was the same as the one vacated in June 1997. Plaintiffs move to set that aside. Judge Jelderks studied the entire administrative record and in September 2002 issued the decision which is at issue in this appeal. Based upon his full review of the Agency's massive record, and citing a wealth of authority from this court and the United States Supreme Court, he concluded that the government's categorical definition of Native American (anything predating 1492) was improper and not entitled to deference. He concluded that the defendants' determination that the Kennewick remains were culturally affiliated to a coalition of tribes was arbitrary and capricious. He also concluded that the Secretary failed to articulate a cogent rationale that supported his finding of cultural affiliation; he never identified an earlier group, as required under the statute, never explained how he inferred a shared group identity, never explained the necessary relationship, never explained what he meant by "geographic evidence," and wholly failed to supply the required rational and ample basis for his decision. Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1462 (9th Cir. 1996). He also concluded that "the final decisions challenged here were not made by neutral and unbiased decision makers in a fair process as is required under the APA" (Opinion at 23).

The District Court also considered that it had already once remanded the case to the Corps as a result of unfair and biased decision making. Given the length of time and extraordinary record that had been assembled and the District Court's own work in reviewing the entire 22,000 pages of record, the District Court concluded that a second remand for a third administrative action would be unwarranted, citing applicable precedent from the Ninth Circuit. The Intervenors sought leave to intervene for purposes of appeal, which the District Court granted. Then they petitioned Judge Jelderks for a stay of his order. After carefully considering that request, the District Court denied the stay. This motion now follows.


The Tribal Intervenors intend their appeal to challenge every ruling the District Court made that was adverse to their position. Intervenors' belief that they need to prevail on only one of these issues to reverse the District Court is wrong. The District Court cited many reasons for vacating the Secretary's determination. Intervenors must convince this court that the District Court erred on virtually every one of those reasons, because this court 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). Since Intervenors must demonstrate on appeal that there was no basis for the District Court's decision to vacate the second administrative action, they must convince this court that the government's definition of Native American was correct, AND that the District Court was wrong in rejecting the finding of cultural affiliation, AND that Intervenors' coalition was a proper claimant, AND that the District Court was wrong in failing to remand, AND that there were no underlying procedural deficits in the government's treatment of plaintiffs. Demonstrating that there was an error on only one or even several of these issues will not suffice. This is a case in which this court will have to conclude that the District Court committed so many independent legal errors that virtually nothing in the opinion can stand.

It is not possible to read the District Court's opinion and still believe that it is so unfounded that this court will reverse it in total. The District Court evaluated the law based upon solid controlling authority from the Supreme Court, Ninth Circuit and persuasive authority from other Circuit Courts of Appeals. Judge Jelderks read 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. Intervenors have not shown a probability or even likelihood that they will succeed in reversing the District Court's analysis of the term "Native American."

The District Court found that it was improper for the federal defendants to conclude that age alone is enough to make something Native American for purposes of NAGPRA. In reaching this result, the District 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 this court 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). Intervenors would have to argue and convince this court that it should disregard the law as expressed by the Supreme Court on more than one occasion. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002) (invalidating a "regulatory sleight of hand" that was "contrary to the Act's remedial design"); Martin v. Occupational Safety and Health Review Com'n, 499 U.S. 144, 157 (1991) (interpretive rules are not entitled to Chevron deference). They will similarly have to argue that this court should reverse itself on like principles it has discussed. See Hall v. United States Environmental Protection Agency, 273 F.3d 1146, 1155-56 (9th Cir. 2001); 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); Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166, 1175 (9th Cir. 2002) ("an elementary canon of construction" requires agency interpretations to give effect to all sections of a statute).

Intervenors argue that they are assured of success because the District Court did not defer to Department of Interior regulations which deleted language that Congress chose to put in NAGPRA. Intervenors 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. This court 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.

Intervenors' use of extinction and genocide to support their arguments makes little sense, for even if remains of an extinct people might be located some day, any claim would likely fail on the inability to prove cultural affiliation. The District 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 relying on settled law, and found that in this individual case the Secretary did not proceed correctly.

B. Intervenors have not shown a probability or even likelihood that they will succeed in reversing the District Court's conclusions on cultural affiliation.

In reaching its conclusion that there was insufficient evidence on the record as a whole to establish cultural affiliation, the District 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 this court will disagree with the District Court's conclusion that the Secretary failed to determine "an identifiable 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. Even the Secretary's own experts could not identify which of these groups, if any, was Kennewick Man's group. Nor can there be a dispute that the Secretary, who is obliged to explain his analysis, failed to explain how there can be continuity between Kennewick Man's cultural group and the modern-day claimant Indian tribes without first identifying the group to which he belonged and what that group's cultural characteristics were. The best the government's experts could do was to reference something called 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 this court will reverse the District Court on that point. Moreover, the Secretary was legally required to explain his reasoning on this point, and he did not.

Nor is this court likely to find that the District Court was patently wrong 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 District 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).

Nor is it likely that this court will find that the District Court was wrong to reject the Secretary's extraordinary conclusion that oral history can be used to span nearly 500 generations. That conclusion was not based on any credible evidence or even 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 (Opinion at 55).

Nor is this court likely to disagree with the District 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 based on clear controlling 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 this court will turn up a missing chapter by a missing expert containing this missing analysis.

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

There is no conceivable legal error in the District Court's conclusion that a band lacking federal recognition is not a proper NAGPRA claimant (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 District Court's conclusion that NAGPRA requires that cultural affiliation be established with a single tribe, not a coalition of disparate claimants. That requirement is clear from the plain language of the statute which, as the District 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 (Opinion at 35).

D. Intervenors have not shown a probability or even likelihood that they will succeed in reversing the District Court's conclusion that the Secretary did not accord plaintiffs the requisite due process.

Even if Intervenors succeed in convincing this court that the District 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, Intervenors must still convince this court that plaintiffs were treated fairly in the administrative process.

The factual basis for the District Court's findings cannot be questioned: it comes directly from the administrative record which showed that Intervenors were allowed to present information and make arguments to the government's decision makers while plaintiffs were being excluded from the administrative process. The coordination and close cooperation between Intervenors and the government was so pervasive the District Court characterized it as collusion (Opinion at 24).

For Intervenors to prevail on this point, this court would have to reverse its own decisions on procedural requirements in administrative proceedings. This court has already firmly announced that an agency decision will be set aside if there is no indication that the decision maker considered materials submitted by one party. Beno v. Shalala, 30 F.3d 1057, 1073-76 (9th Cir. 1994). The District Court was not writing its own law when it followed that authority (Opinion at 21). Nor is there any serious likelihood that this court, 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).

E. The District Court did not err in refusing to remand this matter to the agency, and its decision was based on authoritative Ninth Circuit precedent.

The District Court's conclusion that the government should not be given a third opportunity to reach a valid decision on the fate of the skeleton was consistent with this court's decisions 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 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"); 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.") See also Greene v. Babbitt, 943 F. Supp. 1278, 1288 (W.D. Wash. 1996) (court has no obligation to remand when it has no confidence in agency's ability to decide matter expeditiously and fairly).

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); United States v. Washington, 157 F.3d 630, 642 (9th Cir. 1998); Greene v. Babbitt, 943 F. Supp. 1278 (W.D. Wash. 1996). That, in turn, would require that this court find an error of law, or a clearly erroneous factual finding relating to the decision to remove this case from the agency. Intervenors point to no such error, and there is no probability or even serious likelihood that this court will interfere given the heavy burden Intervenors will have on appeal.

F. Intervenors 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 a stay of a judgment is irreparable harm if the relief is not granted. Sampson v. Murray, 415 U.S. 61, 88 (1974). Speculative and hypothetical concerns are insufficient to meet this burden. Wisconsin Gas Co. v. F.E.R.C., 758 F.2d 669, 674 (D.C. Cir. 1984).

Intervenors made claims of irreparable damage to the District Court. That court, which has been with this case for over six years, found those arguments unpersuasive: ". . . the balance of harm does not tip in the Tribal Claimants' favor" (Order at 4). In reaching that conclusion, the District Court had before it many facts which Intervenors have failed to bring to this court's attention. They include the following:

  • Intervenors were willing to participate in study of the skeleton's discovery site.
  • On other occasions, they have not opposed the study of prehistoric skeletal remains (See Affidavits of James Chatters and Clay Dewman).
  • Inventors did not object when the Corps dropped tons of rock and fill on the discovery site, destroying any bones that had not been removed.
  • They did not seek to intervene in the lawsuit to stop the 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.
  • As long as scientific study of the skeleton was being used to validate their claim, they supported it.
  • The sample removed by the government for radiocarbon dating and DNA testing of the skeleton were approximately 40 times greater than the 1.5 grams that might be used for Intervenors' studies.
  • Study of the skeleton is not imminent. Intervenors have selectively attached to their motion only two out of the more than two-dozen letters exchanged between Intervenors and the government concerning plaintiffs' Study Plan. To date, the government has refused to allow plaintiffs even to inspect the skeleton, and there is no indication of when they will permit actual study to begin.

In contrast, the consequences to plaintiffs of the extensive delays in this case, as explained in their affidavit, are significant, immediate and direct:

  • Dr. Jantz cannot begin synthesizing his scholarly research and views without access to the Kennewick Man skeleton.
  • Dr. Gill's comparative study of the early New World skeletal remains is incomplete without data on the skeleton.
  • 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.
  • Denial of access to the skeleton affects teaching responsibilities.
  • Denial of access has led directly to the loss of research funding.
  • Lack of access to this skeleton impedes plaintiffs' ability to generate and test new ideas and to develop new avenues for research.
  • Lack of verified data on the skeleton leaves a major gap in plaintiffs' database.
  • Without access to the skeleton, plaintiffs cannot respond effectively to interpretations being published by the government's investigators.
  • There are substantial questions about the accuracy of some of the data and conclusions reported by the government's investigators.
  • The government has published and promoted its ideas about the skeleton, and its investigators have given talks and written articles about their interpretations. Plaintiffs and other scientists cannot respond effectively if they cannot study the skeleton for themselves.

Plaintiffs filed this lawsuit in 1996. Dr. Haynes is 74 years of age and retired from full time teaching. Dr. Brace is 72 years of age. Dr. Jantz is 62 years of age. Dr. Bonnichsen is 62 years of age. Dr. Steele is nearly 62 years of age and has retired from active teaching. Dr. Gill is 61 years of age. Dr. Stanford is 59 years of age. Dr. Owsley is 51 years of age. 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).

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 after more than six years of litigation on tenuous arguments that are factually unsupported and legally insufficient.

G. Intervenors 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. Intervenors confuse the "public" interest with their narrow individual interest. The interests of the general public in study of archaeological resources is articulated in law and regulations which, as the District Court pointed out, are "clearly intended to make archeological information available to the public through scientific research" (Opinion at 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 applicants who are seeking the stay. Lopez v. Heckler, 713 F.2d 1432, 1437. The District 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.

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). Artifacts from this era are not plentiful, and well preserved skeletal remains are uncommon. The Kennewick Man skeleton is one of the few early North American skeletons complete enough to provide a full range of biological information.

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. 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. Without adequate information about the skeleton, researchers are limited in their ability to develop and test new theories about the peopling of the Americas.
  • The databases available to plaintiffs and their study team colleagues contain data on many skeletons not included in other databases.
  • 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. Such changes can generate new hypotheses or questions for research.
  • The ability of researchers to publish papers will continue to be affected by further delays in study of the skeleton.
  • If study is delayed for another two or three years, an entire generation of students will go from high school to a final graduate degree without ever having the opportunity to learn the truth about Kennewick Man.
  • 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.
  • The longer the delay, the greater the harm to the public since perceptions based upon erroneous data can take decades to correct.

Plaintiffs and the rest of the world cannot rely on the government's information alone; it has never been verified and may be inaccurate. 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.


Intervenors fail to raise any serious questions about the correctness of the District 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.

Intervenors have also failed to demonstrate that there is any reasonable likelihood this court will disagree with the careful analysis the District Court did over a span of more than a year and a full study of the 22,000 page record. If anything, intervening case law since this case was argued and decided reinforces that the District Court properly vacated the second administrative determination. Nor do Intervenors present a sufficient argument to permit this court to conclude that the balance of hardships tips sharply in their favor.

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. Intervenors' motion for a stay pending appeal should be denied.

DATED this 24th day of January, 2003.


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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