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

Plaintiffs' Response to Motion to Strike Extra Record Evidence and Declarations

Plaintiffs file this memorandum in response to the Motion to Strike filed by federal defendants. The motion is not well taken and should be denied. Plaintiffs did not attempt improperly to supplement the administrative record. Rather, they submitted additional evidence and other materials to the court only where it was proper to do so, or in order to provide the court with readily available copies of hard to find reference materials such as pleadings, case law, or treatises. Plaintiffs grouped all these "supplemental" materials together in the Excerpt of Record starting at ER 321. All were identified by affidavit.

Defendants, who argue broad themes and assertions, have made no effort to discuss the individual documents. They should have done so:

(a) In 1996 and 1997 defendants compiled an original administrative record on which the court's June 1997 remand was based. Whether by oversight or otherwise, defendants excluded many of these documents when they filed their latest administrative record. Plaintiffs included some of the pertinent original documents in the Excerpt of Record. Defendants cannot "undesignate" materials from the record.

(b) Defendants withheld many documents from the record on the basis of asserted privileges and listed them in an index. It does not appear they gave the court a copy. Plaintiffs have included a copy so the court may consider what was withheld, and because it constitutes supporting evidence for plaintiffs' assertions of improper agency conduct. Defendants concede that improper conduct may be proved by extra-record evidence.

(c) Some of the materials are copies of hard-to-find caselaw, public records and treatises. Plaintiffs thought to save the court time by providing copies of these materials that might not be readily available in the court's library.

(d) Some materials relate to decisionmakers bias. Bias and denial of due process may be shown by extra-record evidence. Defendants cannot immunize themselves from court scrutiny by objecting to the evidence that shows misconduct.

(e) Plaintiffs have asserted claims under laws that are independent of the Administrative Procedure Act such as claims under the Freedom of Information Act, Archaeological Resources Protection Act, National Historic Preservation Act, Declaratory Judgment Act, for constitutional deprivations, for injunctive relief, and for mandamus. Plaintiffs have also sought court consideration of defendants' failure to follow the curation order. These are distinct substantive or procedural claims and may be proved with extra-record evidence.

(f) The court file is extensive, with more than 400 docket entries. Some of the supplemental materials are copies of previous court filings. If defendants thought they were improperly filed, they could have challenged them then. They may not now strike documents from the court record under the pretense of claiming they are not part of the administrative record.

(g) Because the supplemental materials are all properly before the court outside of the administrative record, no motion to supplement was required. An affidavit identifying the evidentiary basis for these materials was properly provided. Fed. R. Civ. Pro. 56.

The supplemental materials that defendants seek to exclude are discussed either individually or as a group below.

1. Modified Index of Privileged Documents and Related Correspondence.

ER 321-31 is defendants' index, prepared in pleading form, identifying the documents that they withheld from the record. It did not appear to plaintiffs that defendants ever gave the court a copy, so plaintiffs included it in the Excerpt of Record. This document relates to a single issue which is properly shown by extra-record evidence: defendants' ex parte contacts with the trial lawyers on this case.

In their April 16th memorandum, plaintiffs cited Camero v. United States, 375 F.2d 777, 780 (Ct. Cl. 1967), Greene v. Babbitt, 943 F. Supp. 1278, 1288 (W.D. Wash. 1996), and the 1947 Attorney General Manual, all explaining the obligation of agency decisionmakers to avoid consultation between the decisionmakers and litigation counsel. See generally Plaintiffs' Memorandum in Support of Motion to Vacate at pp. 18 et seq. The index shows that there were such improper consultations, and that the decisionmakers (supposedly unbiased) were actually seeking legal advice from the litigation lawyers (who were anything but unbiased). ER 420-22 and ER 423 are letters from Aimee Bevan (one of defendants' litigation attorneys on this matter) confirming defendants' position that some of these documents were privileged because they were communications in which the litigation lawyers gave legal advice to the decisionmakers.

It is settled law that ex parte contact may be proved by extra-record evidence. That could hardly be otherwise because the very nature of ex parte contact is that it is done off the record. Portland Audubon Society, et al. v. The Endangered Species Committee, 984 F.2d 1534, 1550 (9th Cir. 1993) (directing evidentiary hearing on ex parte contact), Home Box Office, Inc., v. F.C.C., 567 F.2d 9, 57-58 (D.C. Cir. 1977) cert. den. 434 U.S. 829 (1977) (frequent ex parte contact means it is not possible to know the contents of the "full administrative record.") Defendants' own guidelines prohibit this kind of consultation. AG Manual at 57 (agency decisionmakers should not consult with anyone who "engages in the performance of investigation or prosecuting functions in a case"). Since the index and correspondence illustrate some of the scope and nature of this impermissible contact, they are properly before the court as evidence of agency misconduct.

To avoid these limitations, defendants now admit that they handled this case "informally." They chide plaintiffs for having deficient legal understanding, as if there could be no dispute about how this case should be characterized and consequently no right to complain about ex parte communications with decisionmakers, about decisionmakers seeking their legal advice from interested advocates, or about decisionmakers coaching some claimants how to make their case to the detriment of others, or about violations of a court order to proceed fairly and without bias. That surely begs the larger question: what law authorized defendants to be so informal here? Agencies may not proceed informally at a whim; they must consider whether their proceedings "fall within that category of quasi-judicial proceedings deserving of special procedural protections." Marathon Oil v. EPA, 564 F.2d 1253, 1264 (9th Cir. 1977). Because here "the ultimate decision turns on sharply-disputed factual issues," these proceedings should have been carried out with more procedural protections than defendants afforded. Marathon Oil, 564 F.2d at 1261. If defendants forgot those principles, they still had the court's instruction in this case: to "critically examine all of the evidence in the record as a whole, and make specific findings," Bonnichsen v. U.S., 969 F. Supp. at 628, n. 26. See also Greene v. Lujan, 1992 WL 533059 (W.D. Wash. 1992) app. on related issue 996 F.2d 973 (9th Cir. 1993).

Nor may defendants dismiss these real violations by simply claiming that they are all part of the "unitary Executive Branch" and, therefore, cannot violate the ex parte contact rule. Portland Audubon Soc., 984 F.2d at 1544 is the short answer to that argument. It squarely rejects the thought that there could be any such privilege. "There is no presidential prerogative to influence quasi-judicial administrative agency proceedings through behind-the-scenes lobbying." Portland Audubon, 984 F.2d at 1546. Moreover, contrary to defendants' assertions, the materials submitted by plaintiffs make clear that more was going on in these meetings with the White House than mere status reports. The court should not permit defendants now to sweep these contacts into some black hole and object that it is off limits to the court.

These materials are properly before the court which may consider extra-record evidence that tends to show agency misconduct. Northcoast Environmental Center v. Glickman, 136 F.3d 660, 665 (9th Cir. 1998).

2. Case Law And Legal Authorities.

A number of the supplemental materials are merely reference copies of published materials and public documents that are properly to be considered by the court.

ER 331a-k and 332-37 are two decisions from the Indian Claims Commission. The latter is an excerpt from the CTUIR case that defendants have repeatedly referenced in this litigation, first claiming it was a final judgment of aboriginal occupation, then admitting that it was not, then relying on it anyway. The former is an excerpt from the CTUIR findings which summarized tribal history relevant to certain of the claimants. The ICC reporter series is difficult to locate, so plaintiffs included copies for the court's reference. That is not an improper supplementation of the administrative record. Interstate Natural Gas Co., v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir. 1953) (proper to consider reports and records of administrative bodies), City of Carmel-By-The-Sea v. United States Dept. of Trans., 1994 WL 190839 (N.D. Cal. 1994) aff'd in part 123 F.3d 1142 (9th Cir.) (denying motion to strike material that could be judicially noticed, including matters of public record and official actions of administrative agencies).

ER 375-79 is an excerpt from the 1947 Attorney General Manual which Justice Scalia called "the Government's own most authoritative interpretation of the APA" to which the Court has "repeatedly given great weight." Bowen v. Georgetown University Hospital et al., 488 U.S. 204, 218, 109 S. Ct. 468, 102 L. Ed. 2d 493 (1988). As a published interpretive manual which is officially authoritative, the court may properly consider it. Plaintiffs have supplied excerpts to save the court the trouble of locating a copy in the library.

ER 384-85 is an excerpt from the Congressional Record. It is part of the House Report on the Archaeological Resources Protection Act, and constitutes an official Congressional document which accompanied passage of one of the statutes defendants violated. The report of a joint conference committee of both Houses of Congress or the report of a Senate or a House committee is a source from which a court may determine Congressional intent. See, e. g., Chandler v. Roudebush, 425 U.S. 840, 858, n. 36, 96 S. Ct. 1949, 1958 n. 36, 48 L.Ed.2d 416 (1976); United States v. Automobile Workers, 352 U.S. 567, 585-586, 77 S. Ct. 529, 538, 1 L. Ed. 2d 563 (1957). The court may properly consider matters of public record and regulations. Crimm v. Missouri Pacific Railroad Co., 750 F.2d 703, 710 (8th Cir. 1984); Newcomb v. Brennan, 558 F.2d 825, 829 (7th Cir. 1977) cert. den. 434 U.S. 968 (1977).

3. Excerpts From The Initial Administrative Record.

Four documents included as supplemental materials (ER 396, 397, 398 and 399) appeared in the initial administrative record which defendants provided plaintiffs during the first year of this litigation. While plaintiffs do not know why defendants chose to exclude them from the latest version of the record, they have already been designated part of the administrative record and defendants cannot remove that designation now merely because they would prefer the court not consider them.

4. Pleadings From This Matter.

Thirteen of the documents (ER 524 through ER 529) included in the supplemental materials are simply reference copies of pleadings; plaintiffs included them in the Excerpt of Record to save the court time in locating them in the court file.

5. Technical Standards Guidelines.

Nine of the supplemental documents are defendants' own internal guidelines on the handling of archaeological and other sites. These appear at ER 339-370. All relate to the site cover-up project and plaintiffs' claims under the National Historic Preservation Act. Like plaintiffs' other independent claims, their NHPA claims are not limited to defendants' administrative record and can be proved by relevant evidence. These particular document are all the more appropriate because they represent scientific and technical matters that the court may review even in an APA claim, and because they represent matters the agencies should have considered but did not and because they are published internal agency procedures. Crimm v. Missouri Pacific Railroad Co.; Newcomb v. Brennan. The information furthermore relates to a separate matter of agency impropriety: its spoliation of evidence by improperly destroying the discovery site. The court may properly consider that the agencies did not even follow their own guidelines when they dumped rubble on the site.

6. Babbitt Speech.

ER 338 is a report of a speech in which Secretary Babbitt declared his partnership with the tribes and his undying support for Native American causes. That is properly before the court for consideration in the context of plaintiffs' discussion of the bias of the agency decisionmakers. See Stivers v. Pierce, 71 F.3d 732, 744 (9th Cir. 1995) (party alleging unconstitutional bias on part of adjudicator may prove claim by introducing adjudicator's extra-judicial statements that are inconsistent with role of impartial decisionmakers); Cinderella Career and Finishing Schools, Inc. v. FTC, 425 F.2d 583, 590 (D.C. Cir. 1970) (proper to consider speech in which bias was apparent in evaluating fairness of the administrative process).

7. Improper Treatment Of Plaintiffs And Their Efforts To Participate.

Some of the supplemental materials evidence defendants' transparent efforts to block plaintiffs from meaningful participation in the administrative process. Ralpho v. Bell, 569 F.2d 607, 628 (D.C. Cir. 1977) (opportunity to meet and rebut long regarded as primary requisite of due process). Denial of that right is properly before the court as administrative misconduct.

ER 400-01, 407 and 408 are letters plaintiffs sent to request clarification of what defendants were considering so they would have a fair opportunity to provide information pertinent to the inquiry. Since defendants refused to respond, it is remarkable to hear them now claim that "plaintiffs provide no credible explanation for their failure to submit pre-decisional information *** to the federal defendants ***" (Memorandum at 6). Rather, defendants should be explaining how plaintiffs could have been expected to submit evidence on the site cover-up project when they were not given a copy of the plans until after they were finalized. Defendants should be explaining how plaintiffs could have commented on the cultural affiliation reports which they were not given. These letters show that defendants excluded plaintiffs and denied them the right to participate. All of these materials are properly before the court on the issue of improper agency conduct.

8. FOIA Correspondence.

Eleven of the supplemental documents are FOIA correspondence. The FOIA claim is not subject to APA limitations on the record. These are ER 402-03, 404, 409, 410, 411, 412-13, 414, 415, 418, 419 and 424.

9. Adoption of Native American Religious Positions

ER 416-417 is a correspondence in which defendants denied plaintiffs' participation in the process because of Native American religious objections. Because they relate separately to an independent constitutional claim (as well as to improper agency behavior), they are properly before the court even though defendants did not include them in the formal record.

10. Documents On Curation Deficits.

Some of the supplemental documents relate to defendants' ongoing failures to curate the remains properly, despite court directives. They include defendants' own original relative humidity records. Defendants now say these records have corrupt data, and have separately supplied the court with a different chart. But they did not make that assertion when they gave plaintiffs the original records. In any event, this information is pertinent to defendants' failure to comply with the court's curation order and to plaintiffs' separate claim under ARPA. They are properly before the court.

11. Scholarly Publications.

Plaintiffs included excerpts from two scholarly publications, ER 388-90 and ER 391-95. Both of these publications identify non-Indian visitors to this continent long before 1492. They relate directly to the propriety of the 1492 Rule. They are properly before the court because they are evidence of the agencies' failure to consider important information. Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 573 (9th Cir. 1998) (court may look outside the record to determine what matters the agency should have considered but did not). Plaintiffs contend that the 1492 was an absurd result flowing in part from defendants' failure to consider matters they should have considered.

12. Agency Formal Reports to Congress.

ER 380-81 is the report of the Interior Secretary to Congress. ER 382-83 is the DOI Performance Report. ER 386-87 is the Federal Archaeology Program Report to Congress. The court may properly consider matters of public record without being accused of improperly looking outside the record. Crimm v. Missouri Pacific Railroad Co., Newcomb v. Brennan.

13. Chatters Affidavit.

Plaintiffs submitted a brief Affidavit of James C. Chatters. His affidavit was not submitted for consideration on the APA claim. Instead, the affidavit's content addresses the following issues related to other substantive claims:

Dr. Chatters inspected the "stabilization project" on the discovery site and discovered that trees had been planted on the site. This issue relates to plaintiffs' NHPA claims. Defendants have now argued that they did not even know about the trees and have promised to go kill them right away. This issue is relevant to plaintiffs' claims that defendants have filed to meet their statutory obligations to monitor the site properly.

Second, Dr. Chatters' affidavit identifies an issue pertinent to plaintiffs' constitutional claims. Defendants refused to permit him and other members of the Huckleberry research team to conduct appropriate tests at the discovery site because of claims by the Coalition that the site was sacred to them. This constitutional issue is not dependent upon the APA but is a separate substantive claim.

14. Jantz and Owsley Affidavits.

Plaintiffs submitted brief affidavits from two plaintiffs, Drs. Jantz and Owsley. In both cases the affidavits are pertinent to a constitutional claim. Plaintiffs assert that defendants created a limited public forum but denied them access because of viewpoint discrimination. These affidavits contain evidence of papers and studies by scientists who have been given access to the skeleton or the image record. Defendants have denied plaintiffs this same access to plaintiffs who do not support the scientific theories favored by Dr. McManamon. This claim is not governed by the APA.

15. Defendants' Additional (Unrelated) Arguments.

Defendants have taken this opportunity to argue the propriety of their consultation with the Coalition, even though that has no bearing on the motion to strike. They also miss the point of plaintiffs' objections. Plaintiffs do not object that defendants exchanged information with the Coalition. What they object to is that it was done improperly. They object to ex parte contacts, to refusals to provide plaintiffs with the same data, and to coaching. They object that defendants created and followed a lopsided process in which they became advocates rather than the unbiased decisionmakers they were supposed to be.


Plaintiffs considered each of these materials carefully before including them in the court filing. Each inclusion is proper. Defendants' motion should be denied.

Respectfully submitted on this 15th day of May 2001


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


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

Attorneys for Plaintiffs

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