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Scientists' July 1, 2000 Status Report to the Court

Alan L. Schneider, OSB No. 68147
1437 SW Columbia Street, Suite 200
Portland, Oregon 97201
Telephone: (503) 274-8444
Facsimile: (503) 274-8445

Paula A. Barran, OSB No. 80397
601 SW Second Ave., Suite 2300
Portland, Oregon 97204-3159
Telephone: (503) 228-0500
Facsimile: (503) 274-1212

Attorneys for Plaintiffs







Defendants. CV No. 96-1481 JE


Plaintiffs, state the following for their July 1, 2000 Status Report:

1. Request for Status Conference on Yakama Request (if Granted)
The Court has advised the parties it will consider the Motion to Intervene filed on behalf of the Yakama Nation during the week of July 3, 2000. As plaintiffs have previously stated, they will not oppose the motion to intervene. If the Yakama Nation truly believes that their interests are not being adequately represented by the federal defendants, their rejoinder in this case may be appropriate. However, if intervention is allowed, plaintiffs request that the Court schedule a status conference at the earliest convenient date. Plaintiffs believe that such a conference would be proper because it would give the Court an opportunity to consider issues that the Yakama Nation has not adequately addressed, or at least to identify issues to be considered at a later time when the stay is lifted. The Advisory Committee Notes to Fed. R. Civ. P. 24 as well as decisions on intervention make clear that intervention (even where intervention is as of right) may e subject to conditions or restrictions which a court may impose inter alia in the interests of the efficient resolution of a controversy. They may include restricting discovery rights, limiting issues upon which an intervenor may be heard, and limiting the extend to which claims or counterclaims may be asserted. Issues that should be considered in this regard include the following:

a. How will any intervenors be aligned?
The Yakama Nation have asked to intervene as a party defendant. That does not appear to plaintiffs to be proper. Any interest the Yakama Nation may have in this case rises, and falls, with what the government does or does not do with their claims to the skeleton. The Yakama Nation are more properly aligned as a plaintiff, not a defendant. Plaintiffs have not asserted any claims against the Yakama Nation. Plaintiffs are agreeing that the government's process is flawed. Accordingly, they should be suing the government, not plaintiffs. The skeleton is under federal lock and key. What happens to it is up to the government, not plaintiffs.

b. What are the issues on which the Yakama Nation may be heard?
This case is already 3-1/2 years old and there have been a number of motions and Court rulings. Aside from the assertion that the Yakama Nation has claimed the skeleton under NAGPRA, the Nation has not adequately identified the issues it wants to address. The intervenor is normally bound by all prior orders and adjudications and there have been many in this matter already, and the Court may properly limit the issues on which the intervenor may participate.

c. What safeguards may be erected to ensure that the intervention does not unduly delay the litigation?
Adding a new party at this late date has the potential to interfere with Court deadlines which were set after many months, even years of litigation. Plaintiffs believe that intervening after so many years should not be permitted to become a reason for additional delays and hope the Court will address that issue. The Court has an interest in the just and expeditious adjudication of this aging controversy and may impose reasonable conditions or restrictions on the extent of the intervenor's participation.

d. What safeguards may be erected to ensure that the intervention does not unfairly expand the litigation?
The Yakama Nation has proposed filing pleadings as if it were a defendant, which assert a claim of sorts against plaintiffs. Plaintiffs ask the Court to address whether the Yakama Nation by intervening can require plaintiffs to address new claims, new theories, and engage in broad far ranging discovery that could take this case into areas far removed from the issues germane to plaintiffs' original claims against the government. Plaintiffs believe that addressing the proper alignment of any intervenor can productively be done in a status conference.

e. Must other claimants for the skeleton be joined as intervenors as well?
Plaintiffs believe that proper alignment of any intervenors may help simplify issues that can arise given that the Yakama Nation has not identified other claimants to the skeleton, even though it is known that there are others. Plaintiffs wonder whether those other claimants should also be joined if one claimant has now sought to intervene.

f. Will the Yakama Nation's proposed pleading be accepted and, if it is, when are plaintiffs to respond?
The Yakama Nation has proposed a pleading which plaintiffs believe is improper. It represents the claim the Yakama Nation has submitted to the government and which they now wish to assert in this litigation because its proponents appear to have become disenchanted with the Government. If it is to be filed as is, asserting claims against plaintiffs, plaintiffs wish to file a motion under Fed. R. Civ. P. 112 because it is wrongly done. But since this case is presently stayed, they believe the Court can address this issue in a status conference.

2. Plaintiffs' information requests.
Plaintiffs have nothing new to report to the Court concerning the status of the skeleton or federal defendants' administrative proceedings. Plaintiffs' only knowledge concerning these matters comes from the documents that defendants have filed with the Court. Plaintiffs have attempted, without success, to obtain the following from defendants:

a) Copies of the x-rays and CT scans taken by defendants of the skeleton's cranium and of the portion of the hip bone containing the projectile point;

b) Copies of any reports relating to cultural affiliation of the skeleton;

c) Data on the amounts of bone samples returned by the radiocarbon laboratories after completion of their dating tests;

d) Copies of any condition assessment reports prepared by defendants' conservators following their visit of May 17-19, 2000;

e) A copy of Dr. Smith's list of the individuals who handled or who were in contact with the skeleton, and the conditions under which the contacts were made;

f) An electronic copy of the raw computer data used to generate the CT scans performed for the government;

g) A copy of any videotapes or audio tapes that record the removal of samples from the skeleton for radiocarbon dating or chemical testing;

h) References supporting Dr. Trimble's assertions concerning damage to osteological collections used for student teaching (plaintiffs note that these are situations not typical of the Kennewick skeleton).

Dated this 29th day of June, 2000.

Alan L. Schneider, OSB #68147
Telephone: (503) 274-8444
Attorneys for Plaintiff


Paula A. Barran, OSB No. 80397
Telephone: (503) 228-0500
Attorneys for Plaintiffs

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