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Joint Tribal Claimants' Reply in Support of Motion for Stay Pending Appeal

Thomas P. Schlosser, WSBA #06276
Rob Roy Smith, OSB # 00393
Morisset, Schlosser, Homer, Jozwiak & McGaw
1115 Norton Building
801 Second Avenue
Seattle, Washington 99104-1509
Telephone: (206) 386-5200
Facsimile: (206) 386-7322
Attorneys for Defendant/Intervenor/Appellant Colville Confederated Tribes






Case No. 02-35970, 02-35994 & 02-35996 (D.C. No. 96-148 liE)


On January 15, 2003, the Appellants Confederated Tribes of the Colville Reservation, Nez Perce Tribe, Confederated Tribes of the Umatilla Indian Reservation, and Confederated Tribes and Bands of the Yakama Nation (collectively "Joint Tribe! Claimants") filed a Motion and Memorandum of Points and Authorities in Support of a Stay Pending Appeal, supporting affidavits, and an excerpt of the relevant record below. The Tribes respectfully request that this Court grant the requested stay to maintain the status quo pending appeal and prevent the needless destruction of the remains of the "Ancient One" while this Court reviews the weighty issues of first impression presented on appeal.

The issues presented on appeal are substantial and of public importance. There is a clear public interest in their proper resolution. In addition, the balance of hardships in this case strongly favors the granting of a stay pending appeal: if a stay is granted, the status quo will be maintained and there will be no danger of destruction of the remains, which are the subject matter of this action, before the case is authoritatively decided.

The Joint Tribal Claimants show that serious legal questions are raised by this appeal and that the balance of hardships tips sharply in their favor. The very length and tone of appellees' opposition to the Tribes' legal arguments demonstrates that serious. legal questions are raised. Any destruction of the remains at the appellees' hands cannot be adequately remedied by money damages and will be of permanent duration, i.e., irreparable, and may render the substantive issues presented on appeal moot.


This Court is vested with broad discretion to grant a stay pending appeal. See Fed. R. Civ. P. 62(g) "A [stay] is not a preliminary adjudication on the merits, but a device for preserving the status quo and preventing the irreparable loss of rights before judgment." Textile Unlimited, Inc. v. A. BMH & Co.. Inc., 240 F.3d 781, 786 (9th Cir. 2001) (citing Sierra On-Line, Inc. v. Phoenix Software, mc, 739 F.2d 1415, 1422 (9th Cir. 1984).

In stark contrast to the appellees bold, and incorrect, assertion that the Joint Tribal Claimants must prevail on every issue presented on appeal to obtain the requested relief, this Court requires only "a minimal showing on the merits" to support a stay pending appeal. Los Angeles Mem '1 Coliseum Comm 'ii v. National Football League, 634 F.2d 1197, 1203 (9th Cir. 1980); Stanley v. University of Southern California, 13 1313, 1319 (9th Cir. 1994) ("At the very minimum, the moving party must show a fair chance of success on the merits"). Although the Joint Tribal Claimants may likely prevail on all five issues presented for appeal, the Tribes need only prevail on the question of whether the district court erred in rejecting the Department of the Interior's ("DOl") definition of "Native American" to obtain a reversal, and at minimum a remand, of the district court's decision. Should this Court eventually rule in the Tribes' favor on this threshold determination, the Native American Graves Protection and Repatriation Act's ("NAGPRA"), 25 U.S.C. 3001 et seq., protections for ancient native remains bar all of the studies envisioned by the appellees.

Here, there is a strong likelihood of success on the merits considering the district court's misapplication of the Chevron doctrine by refusing to afford judicial deference to the regulatory definition of "Native American" enacted through formal notice and comment rulemaking. See United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) (finding that the "administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority .... as by. - notice-and-comment rulemaking"); accord Navajo Nation v. Dept of Health and Human Sevcs., 285 F-3d 864 (9th Cir, 2002) reh 'g en bane granted, F.3d (9th Cir. 2002).

DOI is charged by, Congress to "promulgate regulations to carry out" NAGPRA. 25 U.S.C. 3011. The definition of "Native American" was subject to numerous revisions and public comment, and intentionally omitted terms suggesting that an indigenous tribe, people or culture must presently exist to be "Native American" to clarify the ambiguity created by the statute's use of the term. See 43 C.F.R. 10,2(d), Since this regulation was adopted with the force of law, the regulatory definition of "Native American" was entitled to substantial judicial deference below, and is entitled to such deference here.

The appellees' bare allegations that there is "no conceivable legal error" in the district court's opinion belies the facts of this case and shrouds the lower court's numerous abuses of discretion in a cloak of rhetoric. The district court's proffered definition of "Native American" undermines the purposes of NAGPRA, improperly renders other provisions of the statute surplusage, and frustrates the clear intentions of Congress in passing NAGPRA. See Tribes' Mot, for Stay at 69. Should this Court find that the lower court' rejection of DOI's regulatory definition of "Native American," NAGPRA's controlling term, was in error, the protections the statute affords ancient native human remains precludes the appellees' proposed destructive actions.

Likewise, sufficient evidence is before this Court to find that the Tribes have a "fair chance of success" on the other four issues presented on appeal. Notwithstanding the apellees' arrogant assertion that "[t]here is no probability or even serious likelihood that this court will disagree with the District Court[]," a facial review of the August 30, 2002 Opinion and Order demonstrates the court's numerous departures from typical judicial review of decisions committed to the sound discretion of the agency charged with implementing a statutory scheme. Pls.' Opp. at 8*; see Mot. for Stay at 9-10 (discussing other four issues).

In particular, the district court also exceeded its authority in the extraordinary relief it granted Because the court rejected DOl's interpretation of the statute's controlling term, "Native American," the appropriate remedy is a remand to the agency with direction to interpret and define the term consistent with the district court's guidance. It is especially critical that the agency charged by NAGPRA with the responsibility and expertise for interpreting the statute do so - rather than the courts 4 because the agency's statutory interpretation will guide the resolution of all future claims under the statute, The Supreme Court has held that "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." Florida Power and Light Co. ". Lorion, 470 U.S. 729, 744 (1985). None of those rare circumstances are present here, and the district court's extraordinary award of substantive relief was unwarranted and an abuse of discretion. As such, the Tribes' have more than satisfied the minimal showing of a "fair" likelihood of success on the merits.


The Appellees' arguments concerning the balance of hardships lack credibility and are unsupported. "{T]he relative hardship to the parties" is the "critical element" in deciding at which point along the continuum a stay is justified. Benda v. Grand Lodge of International Association of Machinists, etc., 584 F.2d 308,314-15 (9th Cir. 1978), cert. dismissed, 441 U.S. 937 (1979).

As the previously submitted declarations and affidavits demonstrate, the balance of hardships tips sharply in the Tribes' favor, Not only do the Tribes' submissions demonstrate the spiritual importance of preserving the remains without further desecration, they also highlight the absurdity of the appellees' contentions. It is simply preposterous to profess that drilling holes in the remains and having dozens of people handling them will not result in any physical damage. The record already reveals that "[m]any bones are quite fragile" and "[t]o the extent that there was damage [to the remains), it was primarily the result of the examination and through handling .... If further damage is to be limited it is therefore essential to limit handling to only that which is deemed necessary." See U.S. Conservators Report at 2, 3, 11 (DOl AR 03737-48) (Attachment A).

Similarly, the point that appellees are getting older and wish to complete their work before they due has little moment. If the appellees are so concerned about advancing their careers before they die, they should seek expedited treatment, rather than blame this Court and the Tribes for any delay. The speculative and remote occupational interests of a few individuals in their early 60s to "test new theories" and reap financial reward from the remains does not rise to the level of hardship necessary to deny the Tribe's requested stay.

The balancing necessary to determine the public interest was already struck by Congress in passing NAGPRA as remedial Indian legislation. See Statement of Sen. Inouye, 136 Cong. Rec. 517,174- 517,175 (daily ed. Oct. 26, 1990) (NAGPRA is "not about the validity of museums or the value of scientific inquiry. Rather, it is about human rights"). Here, the admittedly fragile remains have already undergone extensive and hurtful observation, measurement, and testing by government scientists, producing huge amounts of data that is publically available. The appellees' simply intend to conduct duplicative destructive examinations. Thus, the interests of the Joint Tribal Claimants in seeing the remains returned without further testing Will be irreparably injured in the absence of a stay. III. THE DISTRICT COURT ERRED IN DENYING THE STAY.

This Court reviews the denial of a motion for stay for an abuse of discretion. See United States v. Peninsula Communications, Inc., 287 F.3d 832, 838 (9th Cir. 2002). An abuse of discretion is "a plain error, discretion exercised to an end not justified by the evidence a judgment that is clearly against the logic and effect of the facts as are found." Wing v. Asarco Inc., 114 F.3d 986, 988 (9th Cir. 1997).

The district court's one sentence analysis dismissing out-of-hand the Joint Tribal Claimants' possibility of success on the merits of the appeal is not justified by the record below and vas in error. See Order Denying Stay at 2. Likewise, the district court's concerns for the academics' advancing age and inability to publish their work, and a belief that the remains are of "archaeological interest" does not, and cannot, tip the scale of harm in the appellees' favor. Id at 4. The lower court's finding was based solely on the erroneous conclusion that the "scientists do not intend to carry out extensive invasive studies that will substantially alter the physical condition of the, remains." Id. at 3. The Tribes' declarations and affidavits already before this Court highlight the folly of this assumption.

The lower court's denial of the Tribes' motion for stay ignores the equitable and protective purposes of such a motion, and defies logic by refusing to recognize the irreparable harm to the remains and to the Tribes' proprietary and spiritual interests from the pending appellees' needlessly redundant and physically destructive studies of the remains. The groundwork for these invasive studies has already been laid, and the scientists are poised to blaze ahead with work that will unconscionably and irreparably harm the remains. A stay is the only interim remedy available to the Tribes, as they have been foreclosed from all other avenues of ensuring protection for the remains pending appeal by the district court's numerous errors of law, See Letter from Corps (Attachment B).


For the foregoing reasons, a stay pending appeal should be granted.

DATED this 31st day of January, 2003



Thomas Schlosser, WSBA #6276
(206) 386-5200
Attorney for the Confederated Tribes of the Colville Reservation

Naomi Stacy, WSBA #29434
(541) 278-5274
Attorney for the Confederated Tribes of the Umatilla Indian Reservation

Thomas Zeilman, WSBA #28740
(509) 865-5121
Attorney for Yakarna Nation

Tim Weaver, WSBA #3364
(509) 575-1500
Attorney for Yakama Nation

Rob Roy Smith, OSB#O0393
(206) 386-5200
Attorney for the Confederated Tribes of the Colville Reservation

David J. Cummings, OSB #92269
(208) 843-7355
Attorney for Nez Perce Tribe

Melissa Campobasso WSBA #30602
(208) 818-0952
Attorney for the Confederated Tribes of the Colville Reservation

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