Plaintiffs' January 1, 2000 Status Report to the Court
Alan L. Schneider, OSB No. 68147
Paula A. Barran, OSB No. 80397
Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT
ROBSON BONNICHSEN, et al.,
UNITED STATES OF AMERICA,
CV No. 96-1481 JE
PLAINTIFFS' JANUARY 1, 2000 STATUS REPORT
For their January 1, 2000 status report, plaintiffs state
As the Court is aware, defendants have, again, failed to meet their own timetable to provide the results of radiocarbon dating. Although two of the three testing laboratories have apparently completed their work and provided results to defendants, those results are being withheld pending the completion of work by a third laboratory.
Defendants report (see the "Update on Radiocarbon Test Results") that the difficulty they are encountering is that the laboratories must test old bones. Plaintiffs believe it would be more accurate to report that defendants selected their dating samples without using appropriate procedures to identify which bones were more likely to provide testable samples. Having gone forward with ineptly selected samples, defendants now report that age, the very thing these labs ar expert in testing, is the impediment. Plaintiffs again raise the question whether defendants have the proper expertise to administer scientific studies of the type required here, particularly in light of the wholesale exclusion of plaintiffs who are acknowledged experts in their fields. That is particularly troublesome to plaintiffs in light of their efforts to volunteer information about proper techniques to be used, efforts which were futile since they were simply disregarded by defendants.
Moreover, the fact remains that defendants have had results from two of the testing laboratories for some time and have refused to disclose the data from those on the theory that they need to be considered together. Plaintiffs doubt this is a proper reason for withholding information. Defendants will surely be able to consider all results together when they receive their final reports, and provide a single date as the Court requested, but it is not as though reporting the results from two of the three laboratories is going to change any of the results.
2. DNA Testing
Defendants have made no statements about whether they intend to consider DNA testing. In light of the problems caused by defendants mismanaged selection of the radiocarbon dating samples, plaintiffs are concerned about what happens if defendants do decide to conduct DNA tests of the skeleton. Plaintiffs are prepared to provide defendants with information on how such tests should be conducted and evaluated, but plaintiffs doubt that their impact will be considered by defendants. Accordingly, plaintiffs request that the Court consider requiring that any DNA testing of the skeleton be supervised by the Court.
3. Defendants Ongoing Refusal to Provide Complete Information and Dissemination of Selected Fragments of Information.
(a) ARPA permitting.
Approximately 28 months ago Dr. Thomas Stafford and Dr. Gary Huckleberry requested an ARPA permit to study the discovery site. Defendants have refused to provide a response. Most recently, on December 8, 1999, District Counsel Linda Kirts of the Department of the Army, advised Dr. Stafford that the response "is still being reviewed by our headquarters and other departments of the executive branch" and that "as soon as we have their guidance" Dr. Stafford and Dr. Huckleberry "will be informed whether or not your request will be further processed."
(b) Participation in programs.
Despite restricting access to the skeleton to independent scientists such as plaintiffs, defendants continue to present a one-sided view of the issues surrounding the skeleton. For example, even through there are unresolved disputes on issues such as whether the skeleton was intentionally buried, the cause of death, and certain injuries, defendants continue to feed the public their version of these issues and they continue to refuse to permit independent scientists to examine the skeleton. Defendants also participated in a one-sided lecture series sponsored by the Burke Museum (which is supposed to be neutral repository). Representatives of defendants also participated in a colloquium sponsored by the Williamsburg Institute, "Human Remains: Conservation Retrieval and Analysis." At this colloquium, Dr. Michael Trimble, Nancy Odegaard, Vicki Cassman (who are supposed to be neutral conservators) and Dr. Trimbles assistants from the U.S. Army Corps of Engineers presented a paper n the subject of Kennewick Man.
Plaintiffs are concerned about the effect of this continuing emphasis upon defendants version of this debate. This view is reinforced by the fact that only government-approved persons are allowed to have access to the skeleton itself. That precludes the type of examination that is necessary and proper in a free society. It also continues to foster the impression that the defendants have the correct view of American pre-history and that plaintiffs are merely operating on the fringe.
4. Preservation of Documents
As far as plaintiffs are aware, many of defendants representatives involved in the decision-making process here routinely communicate by transitory methods of communication such as electronic mail. Because so many entities and organizations routinely purge electronic mail without making hard copies, plaintiffs ask the court to direct defendants to preserve a full and complete administrative record, including hard copy or electronic copy of every electronic message on this subject. If that is not done, plaintiffs believe that important documents might be lost.
Dated this 30th day of December, 1999.
Alan L. Schneider, OSB #68147
Barran Liebman LLP
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