Plaintiffs' Reply on Motion for Clarification
Alan L. Schneider, OSB No. 68147
Paula A. Barran, OSB No. 80397
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBSON BONNICHSEN, et al.,
UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, et al.,
Defendants. CV No. 96-1481 JE
PLAINTIFFS' REPLY ON MOTION FOR CLARIFICATION
1. Defendants' comments about culturally affiliated remains are irrelevant.
Defendants start their response by stating that any request to study culturally affiliated remains must be made to the appropriate tribe. Defs. Response at 2. Regardless of the accuracy of that pronouncement, it has no bearing on the request plaintiffs have made. Plaintiffs are asking for an immediate response to whether they may study if the remains are not culturally affiliated.
2. Defendants "reiteration" of their previous answers is a non-response.
In a superb example of double-speak, defendants state that they "previously have answered plaintiffs' questions," Response at 2, and then go on to state "at this juncture the agency cannot state with finality whether or not the plaintiffs will be permitted to undertake the studies they have proposed. This reiteration of defendants' non-answer is why plaintiffs motion was made.
3. An immediate response on the request to study if not Native American is appropriate.
All parties know that plaintiffs will challenge the government's definition of Native American. All parties know that Court intervention is necessary to keep the process moving at all. In light of the extraordinary delays, plaintiffs are entitled to know whether they may study if, after the challenge of the government's definition of Native American, they may study the skeleton.
That (a) there will be a challenge and (b) that a court will eventually find that it is arbitrary and capricious to define Native American by referring to the Spanish funding of an Italian explorer's visit to the New World are plain. Plaintiffs' problem is that they are in a government time lock. If the government is permitted to delay this important question simply by claiming that it need not answer because the skeleton is Native American, plaintiffs face additional years of litigation. Defendants, who have never done anything expeditiously, have simply lost the right to beg the court for more time or to impose further delays on plaintiffs.
Moreover, the question has consequence in the remaining controversies. If defendants have a reason to deny study of a non-Native American skeleton for some other reason, plaintiffs deserve to hear it. Do defendants disapprove of the color of Dr. Bonnichsen's eyes, or Dr. Owsley's schooling? Since these are reasons that could figure into a denial of a non-culturally affiliated skeleton, the defendants should be forced to articulate them. Now would be an excellent time.
4. After 3 1/2 years, "not ripe for review" is not a proper answer.
There are advantages to being a government agency in control of the process: defendants can control when a matter becomes ripe for review by the simple expedient of being non-expedient. Do nothing and nothing is ever ripe. That is why plaintiffs had to file a motion to require an answer in the first place.
In short, the present DNA procedures, which plaintiffs have always suggested, are no impediment to answering the remaining questions. Defendants have provided no reasoned or principled excuse for their refusal to respond.
Dated this 4th day of April, 2000.
BARRAN LIEBMAN LLP
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