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Plaintiffs' Response to Motion for Leave to File Supplemental Record

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

Plaintiffs' Response to Motion for Leave to File Supplemental Record

Plaintiffs do not object to defendants filing a supplemental administrative record; in fact, plaintiffs do not believe that a formal motion is necessary since the issue has already been discussed with the Court.

Plaintiffs do, however, wish to express concern about the lateness of the proposed filing date. Defendants propose filing this supplemental record on February 19, 2001 and admit that they did not even begin assembling the documents for this record until after the plaintiffs filed their amended complaint on January 2, 2001. But plaintiffs made it quite clear at the October 25, 2000 in-court status conference that they intended to include in the amended complaint a claim about the treatment of the discovery site. Counsel for the government understood that point and commented to the Court that there would need to be a separate record for the NHPA claim. See Transcript of Proceedings, October 25, 2000 at 31. Defendants offer the Court no excuse for this two month delay in beginning the task of assembling the needed record.

Moreover, some of this additional delay is mere busy work. Ms. Bevan explained in a telephone message that defendants wanted to assemble a complete separate record, apparently meaning that defendants would add to the new documents any documents already in the record that related to the cover-up of the site. That process, she explained, would take some time because it meant somebody had to go through the existing record and identify or pull out those documents that belong with the new record.

Plaintiffs should not have to wait while this reshuffling goes one. Plaintiffs do not have an objection to a 'final' version of the record being filed on February 19, 2001, as long as the government provides us with a set of the as-yet-unnumbered documents immediately. That way defendants can still prepare their final version and number it however they wish., but plaintiffs will not have to wait through more government-caused delays. Plaintiffs have no desire to ask the Court to move the briefing schedule because of the government's failure to act in a timely manner. We merely want to have the documents in time so we can review them before our written arguments are filed.

Accordingly, plaintiffs ask the Court to grant defendants' motion on the condition that they immediately provide plaintiffs with the documents that will make up this final record, even though they might as yet be unnumbered, and then supply them with the 'formal' record no later than February 19, 2001.

Dated this 5th day of February, 2001.

ALAN L. SCHNEIDER, PC
Alan L. Schneider, OSB No. 68147

BARRAN LIEBMAN LLP

(signed)
Paula A. Barran, OSB No. 80397
Attorneys for Plaintiffs



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