Plaintiffs' Response to Defendants' May 2001 Status Report
Plaintiffs are mindful of how large the Court's files on this case have become over the past 55 months. Not wishing to add even more paper to those already bulging files, plaintiffs have refrained in the past from responding to the status reports filed by defendants since the stay was lifted in October 2000. Plaintiffs would do the same with defendants' latest "status report" but for the fact that it raises issues that appear to warrant clarification from the Court about the procedures to be followed before the June 19th hearing.
Plaintiffs did not understand the Court's order of October 25, 2000 as contemplating that the parties would continue to file periodic status reports. Plaintiffs do not object to defendants filing reports to advise the Court of any changes in the collection's current condition or any activities undertaken by them for the purpose of preserving the skeleton's potential scientific values. Such reports are certainly appropriate for without them the Court and plaintiffs would be left totally in the dark about the status of the skeleton's curation.
Defendants' latest "status report", however, is more of an argument for the June 19th hearing than it is a status report. For example, Dr. Trimble's affidavit on relative humidity is an obvious response to an issue raised in plaintiffs' April 16th the memorandum. If defendants wish to argue this point (1), the proper place to do so is in their opposition memorandum so the orderly briefing process set out in the Court's order can be followed. The Court has allowed the parties an extra 10 pages for their hearing briefs. If defendants think they need more pages, the appropriate procedure is to petition the Court for a waiver so their request and its effects on the other parties and the Court's workload can be properly considered (2).
Likewise, defendants' claim that they were unaware of the new trees planted at the discovery site is a response to another issue raised in plaintiffs' opening memorandum. Even if that claim is true, it does not excuse defendants' failure to monitor the site as they are required to do under the National Historic Preservation Act.
The reports from Dr. Taylor and from Drs. Walker, Larsen and Powell are equally questionable as appropriate subjects for a status report. They relate solely to issues to be considered at the June 19th hearing (i.e., the process used by defendants for reaching their determination decisions). If defendants wish to rely upon these reports to help justify their decisions, they should have included them in the administrative record before it was closed. They should not seek to supplement that record now by a late filing with the Court. According to defendants, however, these reports can be justified because "the substance of the information contained in these documents" is supposedly included in other documents already in the record. Status Report at 4. But, if that claim is true, then the reports are not needed since they are redundant of other information. If it is not true, (3) then the reports are not properly a part of the record on which defendants can rely (4).
Defendants have also included an elaborate explanation of why they failed to deliver the photographic prints ordered by plaintiffs until after plaintiffs' opening memorandum had been filed. It is not clear why defendants have bothered the Court with this matter, rather than handling it through correspondence between the parties. What is significant, however, is that defendants have not told the whole story about this incident. They fail to explain why Mr. Simmons did not make arrangements to have the prints delivered in a timely manner in his absence. They also failed to mention that plaintiffs were required to order and pay for duplicate prints in order to avoid causing potential damage to defendants' original color photographs. Later after plaintiffs complained about defendants' treatment of this matter, defendants concede that their photographs could have been safely photocopied. See attached letter dated April 25, 2001 from David F. Shuey.(5)
RESPECTFULLY SUBMITTED this 14day of May 2001.
ALAN L. SCHNEIDER
BARRAN LIEBMAN LLP
(1) Plaintiffs will not respond here to the substance of Dr. Trimble's claims except to note that they are not consistent with defendants' prior representations (see plaintiffs' April 16th memorandum at 37) or with what Dr. Trimble could reasonably know. back
(2) Defendants assert that they are entitled to address this issue now because plaintiffs cited curation documents that are not in the formal administrative record. However, plaintiffs' claims relating to curation of the skeleton are not bounded or limited by defendants' administrative record. They involve violations of the law and the Court's orders that are independent of defendants' determinations concerning disposition and study of the skeleton. As such, they are amenable to proof by all relevant evidence regardless of source. Among other things, such evidence could include information obtained through further discovery and the deposition of witnesses. back
(3) Since defendants failed to provide any references to the record, it is difficult to verify whether the reports merely duplicate other information in the record as defendants claim. It does appear, however, that at least pages 4 to 10 of the Taylor report are new material not found in that format elsewhere in the existing administrative record. The final Walker et al report also contains new textual descriptions of photographs not included with the earlier draft of the report. back
(4) However, these reports may be relevant for other purposes. Among other things, Dr. Taylor's report illustrates how defendants have used their control over the skeleton to channel and influence public discussion of the skeleton's implications. Pages 4 to 10 of his report are a copy of a paper that he, Dr. David Glenn Smith (one of the scientists who participated in defendants' DNA studies) and another scientist delivered at a conference in Israel in June 2000. They were able to present this paper only because they had access to information about the skeleton not available to plaintiffs or other unaffiliated scientists. back
(5) This letter can properly be considered by the Court even
though it is not part of the formal administrative record. Defendants'
lack of candor or shifting positions on this (or other issues)
is a subject for legitimate inquiry regardless of whether it
occurs within or outside the record that defendants have chosen
to present to the Court. back
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