Judge's Order of January 8, 2003
IN THE UNITED STATES 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,
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,
NEZ PERCE TRIBE, CONFEDERATED TRIBES OF THE UMATILLA INDIAN RESERVATION, CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION, and CONFEDERATED TRIBES OF THE COLVILLE RESERVATION [collectively "Joint Tribal Claimants"],
Civil No. 96-1481-JE
Alan L. Schneider
Paula A. Barran
Attorneys for Plaintiffs
David F. Shuey
Timothy W. Simmons
Attorneys for Federal Defendants
Rob Roy Smith
Thomas P. Schiosser
Attorneys for Defendant/Intervenors Joint Tribal Claimants
JELDERKS, Magistrate Judge:
Defendant/Intervenors Nez Perce Tribe, Confederated Tribes of the Umatilla Indian Reservation, Confederated Tribes and Bands of the Yakama Nation, and Confederated Tribes of the Colville Reservation (Joint Tribal Claimants) seek an Order staying this court's Order dated August 30, 2002. The motion for a stay is denied.
On August 30, 2002, this court vacated a decision awarding the remains of the "Kennewick Man" to the Tribal Claimants, enjoined the transfer of the remains to the Tribal Claimants, and ordered the federal defendants to allow plaintiffs to study those remains, subject to certain conditions. The court subsequently granted the Tribal Claimants' motion to intervene for the purposes of appealing that Order, and both the Tribal Claimants and the federal defendants have filed appeals.
The Tribal Claimants now move to stay this court's Order of August 30, 2002, pursuant to Fed. R. Civ. P. 62, pending resolution of the appeals. Though they have not moved for a stay, the federal defendants state that they "have no objection to the Tribal Claimants' motion for a stay, and believe that maintenance of the status quo during the pendency of the appeal is appropriate."
Rule 62(c) allows a district court to suspend or modify an injunction while an appeal is pending. This rule "is merely expressive of a power inherent in the court to preserve the status quo where, in its sound discretion, the court deems the circumstances so justify." McClatchy Newspapers v Central Valley Typo. Etc. 686 F.2d 731, 734 (9th Cir. 1982) (quoting 7 J. Moore, Moore's Federal Practice § 62.05, at 62-19,20 (2d ed. 1979)). In evaluating requests to stay an order pending appeal, courts consider: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceedings; and (4) where the public interest lies. Hilton v Braunskill 481 U.S. 770, 776 (1987).
In evaluating the motion for a stay, I have again reviewed my earlier decision and the parties' arguments concerning the significant issues raised in this action. Based upon that review, I am satisfied that the Tribal Claimants and the federal defendants have not shown that the decision granting the plaintiff scientists' request to study will likely be set aside on appeal.
I recognize that the tests and examinations that the plaintiff scientists plan to carry out constitute some injury to the Tribal Claimants, who oppose any further study on religious and spiritual grounds. However, because the plaintiff scientists do not intend to carry out extensive invasive studies that will substantially alter the physical condition of the remains, the remains would be available for burial without substantial change from their current condition if the Tribal Claimants were to prevail on appeal. Under these circumstances, the scope of the potential harm to the Tribal Claimants is limited. On the other hand, granting a stay would inevitably result in some significant injury to the plaintiff scientists, who have already waited many years for the opportunity to study the remains. Several of the plaintiffs are apparently nearing the end of their careers, and staying further study while the appeals are pending could prevent them from ever completing their research and publishing the results of their work. The plaintiff scientists have submitted affidavits demonstrating that denial of access to study is causing substantial delays in significant research and analysis, impeding the ability to secure funding, delaying publication of their work, and making it impossible to test and respond to interpretations published by the government's investigators. These are important kinds of harm, too, and the balance of harms does not tip in the Tribal Claimants' favor.
Turning to the last of the factors to be considered, I note that there is certainly a public interest in respecting the religious and spiritual beliefs of all groups, including the Tribal Claimants. However, there is also a public interest in allowing the plaintiff scientists to carry out studies consistent with this court's Order. The remains were initially collected pursuant to a permit issued under the Archeological Resources Protection Act (ARPA), which authorizes the issuance of permits for activities "undertaken for the purpose of furthering archaeological knowledge in the public interest. . ." 32 CFR § 229.8(2). The remains are, as I noted in my August 30 Opinion, "of obvious archaeological interest," and the public has an interest in the studies proceeding without further delay.
In sum, the factors required for a stay pending appeal are not satisfied here.
The Tribal Claimants' motion for a stay pending appeal (#547) is DENIED.
DATED this 8th day of January, 2003.
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