Thursday, Apr. 16, 1998

Memorandum in support of motion to vacate second administrative action

III. DEFENDANTS VIOLATED THE APA AND DUE PROCESS GUARANTEES.

Administrative processes that are arbitrary and capricious, contrary to law, or otherwise unfair violate the APA, and possibly due process protections. See Portland Audubon Soc. v. Endangered Species Committee, 984 F.2d. 1534, 1537, n.4 (9th Cir. 1993); Antoniu v. SEC, 877 F.2d 721, 724-25 (8th Cir. 1989), cert. den., 494 U.S. 1004 (1989); Greene v. Babbitt, 943 F. Supp. 1278, 1285-1287 (W.D. Wash. 1996).

A. The Decisionmakers and Coalition Had Improper Ex Parte Contacts.

The ex parte ban applies to anyone who acts as a decisionmaker, which includes not only the official who signs a determination, but also any agency employee who is, or may reasonably be expected to be, involved in the decisional process. 5 U.S.C. 557(d)(1). There were at least three decisionmakers here who should have heeded the ban: Secretary Bruce Babbitt, the Departmental Consulting Archaeologist (Dr. McManamon) and Dr. McManamon's assistant (Jason C. Roberts). The Appendices show they did not.

Coalition members sent many letters directly to Secretary Babbitt, arguing their position on study and ownership of the skeleton. There is no indication he was screened from them, and his aides responded to several. See Appendix A-1.

Appendix A may not include all of the ex parte contacts. At times defendants kept no notes of a meeting or discussion, (or failed to include them in the record) and existing documents do not always identify the participants in meetings or telephone conferences. Moreover, defendants have withheld evidence of more than 50 communications on a claim of privilege.

B. The Decisionmakers Had Ex Parte Contact with Other Agencies.

Decisionmakers should avoid ex parte contacts with any person who has an interest "that is greater than the general interest" of the public as a whole. Portland Audubon, 984 F.2d at 1544. The ban includes the White House: "There is no presidential prerogative to influence quasi-judicial administrative agency proceedings through behind-the-scenes lobbying." Portland Audubon, 984 F.2d at 1546.

C. Ex Parte Contacts Occurred With Defendants' Trial Attorneys.

Defendants should know that it is improper for trial advocates to have ex parte contacts with agency decisionmakers in quasi-judicial proceedings since it was DOI's failure to stop such contacts that resulted in a due process violation and contempt finding in Greene, 943 F. Supp. at 1289, on remand from 64 F.3d 1266 (9th Cir. 1995). The court criticized BIA counsel:

"As an advocate, he was prohibited from participating in, advising, or assisting the Assistant Secretary with her final decision as to tribal recognition for the Samish. * * * The purpose of this Court's original remand order in 1992 was to take this case out of the political arena and to assure that the Samish would have their claims heard by an impartial and disinterested fact finder. * * * This purpose was substantially frustrated, however, by the government lawyer's improper ex parte communications with the decision maker, which resulted in a violation of the plaintiffs' rights to due process." 943 F. Supp. at 1286-87.

Defendants admit their litigation counsel gave legal advice to the decisionmakers, and

D. Defendants Foreclosed Meaningful Participation by Plaintiffs.

Even if informal adjudication were proper here, defendants paid scant attention to due process. A party to an administrative proceeding:

"is entitled to know the issues on which a decision will turn, and to be apprised of the factual material on which the agency relies for decision so that he may rebut it. Indeed, the Due Process Clause forbids an agency to use evidence in a way that forecloses an opportunity to offer a contrary presentation." Williston Basin Interstate Pipeline Co., v. FERC, 165 F.3d 54, 63 (D.C. Cir. 1999).

Despite that requirement, defendants withheld information about what issues were under active consideration and what evidence they were considering. When plaintiffs asked, they were curtly rebuffed by defendants' attorneys:

"It would be inefficient and inconsistent with administrative law principles to provide portions of the record in advance on a piecemeal basis as you suggest. * * * You raise some concern that you will not be able to respond to issues raised to the Corps unless you see what has been submitted to the Corps. However, general rules of administrative practice are that parties should submit information that they wish the Corps to consider, not that the parties respond to issues presented to the Corps." ER 37; COE 7236.

Such treatment is inconsistent with the APA and due process. See Ohio Bell Tel.Co. v. Public Utilities Commission of Ohio, 301 U.S. 292, 300, 57 S. Ct. 724, 81 L.Ed 1093 (1937); Sangamon Val. Television Corp. v. U.S., 269 F.2d 221, 224 (D.C. Cir. 1959) ("the parties who were opposing the transfer of Channel 2 from Springfield to St. Louis could not question Tenenbaum's contention, since they did not know he was making it.")

The Secretary and his advisers were surely aware of this requirement, for the Ninth Circuit reminded them of it just a year before the Kennewick Man discovery. Greene, 64 F.3d at 1274-75, held that DOI and the Secretary had violated the claimants' due process rights by conducting the same kind of secret, closed-door decisionmaking they used in this case:

"[T]he petitioning tribe did not have access to all of the material evidence and therefore had to speculate whether its materials adequately addressed materials submitted by others. * * * Informal decision-making, behind closed doors and with an undisclosed record, is not an appropriate process for the determination of matters of such gravity." 64 F.3d at 1274-75.

"The company protested. It asked disclosure of the documents indicative of price trends, and an opportunity to examine them, to analyze them, to explain and to rebut them. The response was a curt refusal." 301 U.S. at 300.

Defendants applied different rules to the Coalition. Defendants had at least eighteen meetings and telephone conferences with Coalition representatives, and repeatedly asked the Coalition to seek and supply particular information. See Appendix B-1, B-2, B-3. Coalition members were given special access to the government's materials including advance access to the cultural affiliation reports and the first phase study reports. Defendants gave feedback on the Coalition's affiliation materials (see ER 156; DOI 09101), and coached the Coalition on issues to address. Coalition members were even allowed to survey the discovery site for defendants. ER ---313-16; COE S-913, 914, 920, 922. This special treatment was contrary to the Court's 1997 remand and later admonitions.

E. Defendants' Decisionmaking Process Was Defective For Other Reasons.

(2) The Secretary claimed that oral traditions demonstrate a "continuity" between the Coalition and the people of Kennewick Man's era, relying extensively on the Boxberger report. That work, however, was based in part on unreported telephone conversations with "appropriate tribal representatives." ER 184; DOI 10267. Defendants did not record how these conversations may have influenced his conclusions. For all the Court can tell, they may have included contradictory information.

(3) Parties to administrative proceedings are entitled to absolute neutrality by the decisionmakers. Gibson v. Berryhill, 411 U.S. 564, 579, 93 S. Ct. 1689, 36 L.Ed.2d 488 (1973); Staton v. Mayes, 552 F.2d 908, 913 (10th Cir. 1977), cert. den., 434 U.S. 907 (1977); Throckmorton v. NTSB, 963 F.2d 441, 445 (D.C. Cir. 1992); NLRB v. Phelps, 136 F.2d 562, 563-64 (5th Cir. 1943). The Army Corps and Secretary, however, expressed their "partnership" with the Coalition, and their actions reflect a commitment to favor the Coalition, regardless of the evidence.

(6) Defendants did not articulate "a rational connection between the facts found and the choice made" as required by the APA, but relied on generalities and naked conclusions, such as "the collected oral tradition evidence suggests a continuity." ER 162; DOI 10015. They did not articulate why some facts were accepted and others rejected, what specific facts they relied upon, or how those facts rationally compelled their decision. The Court and plaintiffs are left to guess at the ultimate reason.

Footnotes

NAGPRA is not exempt from APA and due process protections: "nothing in this Act shall be construed to limit any procedural or substantive right which may otherwise be secured to individuals or Indian tribes or Native Hawaiian organizations." 25 U.S.C. 3009(4) (emphasis supplied).

The overall process here was an adjudication, which is any agency process to formulate any disposition in a matter other than rulemaking. Portland Audubon, 984 F.2d at 1540-41 (process is quasi-judicial where agency's task is to adjudicate disputed facts); RLC Industries Co. v. C.I.R., 58 F.3d 413, 417-18 (9th Cir. 1995) (administrative action is either adjudication or rulemaking with rulemaking used to implement future law or policy); 5 U.S.C. 551(5)-(7).

There were likely other decisionmakers, but the ex parte contacts by these three were so extensive that the Court need not search for a full list of involved agency staff. Secretary Babbitt, the senior official of DOI, signed the September 21, 2000 Determination. Dr. McManamon and Mr. Roberts had important decisionmaking roles and were responsible for "research, analysis, evaluation, synthesis, and application of these diverse lines of evidence" relating to cultural affiliation of the skeleton. See ER 158; DOI 09529. Dr. McManamon named himself as the author of the January 11, 2000 document entitled "Determination That the Kennewick Human Skeletal Remains are 'Native American.'" ER 165; DOI 10018.

Meetings occurred on October 20, 30, November 3, 4, 6 and 7, 1997. See ER 11; COE, 0002504; ER 66, 69; DOI 02002, 02005. Dr. McManamon also met with White House staff on July 9, 1998. ER 83a; DOI 03977.

See, e.g., documents on defendants' privilege list (ER 321) for 10/7/99, 12/7/99, 3/27/00, 5/26/00, 6/14/00.

For example, on April 29, 1998 plaintiffs wrote: "please advise us of the types of information (e.g., anatomical, genetic, cultural, etc.) that will be considered by the government when deciding whether the skeleton is Native American within the meaning of NAGPRA, and how such information relates (or does not relate) to Dr. McManamon's interpretation of the term 'Native American.' * * * [P]laintiffs are at a complete loss to understand what standard will be used by the government in resolving this issue, and what evidence is being sought" ER 400-01, (Schneider, 4/29/98). Defendants did not respond. See also ER 33; COE 7083 (Schneider, 9/15/97) and ER 407 (Schneider, 3/21/00), for other requests.

Defendants forwarded preliminary drafts of the reports as early as February 3, 2000. See ER 117, 119; DOI 06746, 06987. Plaintiffs, who asked for them in March (ER 407 (Schneider, 3/21/00)), saw them only seven months later after they had been finalized for filing with the Court.

The NPS website had a restricted section. Coalition members had access but plaintiffs did not. ER 99; DOI 05001.

The July 7, 2000 meeting agenda included "areas where tribal representatives may be able to supply additional information to address perceived discontinuities or gaps in the anthropological record." ER 14; COE 0002812. Afterwards, Dr. McManamon wrote to Coalition members seeking information on specific topics such as obsidian, olivella shells, Ice Age volcanic eruptions and floods (ER 122; DOI 08715), burial practices, and excavations on the Umatilla reservation (ER 123; DOI 08718).

Compare the detailed notes recorded for DOI's interviews with radiocarbon specialists. ER 95-98; DOI 4591-4594.

See ER 396; COE 656, Meier 8/29/96 when no tribal claim had even been made, and Babbitt speech to National Congress of American Indians, ER 338, AP news story, November 14, 2000.

The July 14, 1998 meeting with Coalition is illustrative. Armand Minthorn (from the Coalition) asked whether there would be additional testing "if we get our answer on the first try" and DOI responded that "we will add language that if we get right answer 1st time will not go forward." ER 18; COE 5130. Despite the remand, this is scarcely different from assurances defendants made in 1996: "I told him we will do what the tribes decide to do with the remains, but that we would not involve ourselves in that decision. I assured him that we are working under the assumption the decision will be what the Umatilla have asked for." ER 42; COE 7905 (e-mail).

ER 108; DOI 06040. See also Dr. McManamon's scope of work statement for defendants' affiliation studies: "the ancient group represented by the Kennewick human remains, which likely resided within the same region 9,500 years ago." ER 100; DOI 05276.

The Court's Opinion, 969 F. Supp. 651, n.24 noted some of the potential implications of these competing hypotheses.

BLM is part of DOI. The age of the Spirit Cave remains is reflected at ER 124-25; DOI 08745, O8760. The full report is at DOI 8745 et seq. or at http://www.nv.blm.gov.