Wednesday, Jul. 01, 1998

Plaintiff's reply memorandum

IV. DEFENDANTS' USE OF INFORMAL ADJUDICATION WAS IMPROPER AND CONTRARY TO THE COURT'S ORDER.

A. Informal Adjudication Was Not Appropriate In This Case.

One determinant is whether the agency' actions "closely resemble judicial determinations" by defining the specific rights of individuals or entities. Marathon Oil v. EPA, 564 F.2d 1253, 1261 (9th Cir. 1977). When a task requires an agency to weigh evidence and make determinations in an order supported by findings, the process is quasi-judicial. Morgan v. United States, 298 U.S. 468, 480, 56 S. Ct. 906, 80 L.Ed.1288 (1936) and 304 U.S. 1, 20-21, 58 S. Ct. 773, 82 L.Ed. 1129 (1938). Informal procedures are appropriate only for agency acts that do not depend on the resolution of factual disputes. United States v. Florida East Coast Ry., Co., 410 U.S. 224, 246, 93 S. Ct. 810, 35 L.Ed.2d 223 (1973). The distinction turns not on language, but on what the agency is doing. If it is weighing evidence, making determinations from contested facts and deciding the rights of individuals, special procedural protections are required. Marathon Oil, 564 F.2d at 1263. Defendants told the Court that was what they would do:

Defendants suggest that the remand decision's use of the phrase "arbitrary and capricious" gave them leave to proceed by informal adjudication and avoid rigorous review by the Court. The Court's remand was more exacting. It held that defendants' first "decision making procedure" was flawed, Bonnichsen, 969 F. Supp. at 645, and instructed them to "fully reopen this matter, to gather additional evidence, to take a fresh look at the legal issues involved, and to eventually reach a decision that is based upon all of the evidence, that applies the relevant legal standards, and that provides a clear statement of what the agency has decided, and the reasons for that decision." Id.

B. Defendants Cannot Justify Their Ex Parte Contacts.

Plaintiffs' Memorandum discussed the impropriety of litigation counsel providing legal advice to the decisionmakers. Plaintiffs' Memorandum at 17-19. Defendants do not disagree that these contacts occurred or that the decisionmakers sought and obtained legal advice from litigation counsel. They do not discuss any of the decisions and authorities plaintiffs cited on this point.

Defendants admit that Coalition members had extensive direct contacts with the decisionmakers. Defendants' Memorandum at 23. They do not deny that Dr. McManamon coached Coalition members on how to present their claims more effectively, or his desire to influence scholarly debate. Plaintiffs' Memorandum at 31, n.48. Nor do they deny that no minutes or notes were made of many contacts with the Coalition, or that if they were, those minutes or notes are not in the record. See Plaintiffs' Memorandum at 14-16 and Appendix A.1 (summarizing more than 50 such contacts).

The reference in 10.5(b) to the "responsible federal agency official" cannot be reconciled to the APA if it means a decisionmaker. Someone else must conduct the consultation, or the procedure and the regulation will be invalid under the APA. Likewise, consultation may not be done secretly or concealed from the record. Otherwise, the procedure prevents judicial review. When consultation occurs, other affected parties must be included so they can provide rebuttal evidence. Otherwise, the process violates the APA. Moreover, nothing in either the law or the regulations authorizes coaching and manipulating the record. Such actions are inherently contrary to law.

C. Defendants Deprived Plaintiffs Of Other Protections Mandated By Due Process.

Defendants were not without guidance from case law as to the procedural protections required here. There is no evidence they even considered the question.

Here, the res, the skeleton may be irrevocably lost not just to the eight plaintiffs, but to all who wish they could study and learn from it. It cannot be replaced. The controversy is highly polarized, highly public, and concededly "high profile." It is marred by admissions that Dr. McManamon sought to use his public position to influence scholarly debate, and by government statements indicating that the result here was preordained. It is a controversy with strong precedential value which may set a standard for treatment of other ancient remains. Plaintiffs have raised fundamental constitutional issues. If defendants did not care about plaintiffs' rights, they should at least have considered the Court's expressed concerns and public perceptions of the fairness (or unfairness) of government conduct.

Even when informal agency proceedings are permitted, all supporting data must be available for court review. So-called "blind references," like the failure of Dr. Boxberger to identify the information he gleaned in telephone calls with the Coalition, or the missing notes of government meetings, prevent proper review:

"[W]e simply cannot determine whether the final agency decision reflects the rational outcome of the agency's consideration of all relevant factors when we have no idea what factors or data were in fact considered by the agency. * * * We cannot, in other words, determine whether the agency action is arbitrary and capricious." United States Lines, 584 F.2d at 533.

D. There Is No Evidence Defendants Were Concerned About Plaintiffs' Views.

Defendants argue that plaintiffs had every opportunity to submit data for consideration, citing what appears to be an impressive array of contacts with plaintiffs. Defendants' Memorandum at 24-26. Nearly all of these examples consist of materials the plaintiffs collected and submitted on their own, with neither request nor acknowledgement from defendants. Some are examples of "opportunities" that occurred only as a result of Court order. Some are plainly staged: for example, defendants invited Dr. Haynes to join their study team, knowing that he is a geologist, not an anthropologist or osteologist.

Defendants offer no defense of the way they ignored plaintiffs' requests for guidance on the issues under consideration so they could submit appropriate information. See Plaintiffs' Memorandum at 19-20. Until the process was over and the administrative record was filed, defendants left plaintiffs to guess at what the decisionmakers might be considering. Had there been any semblance of a dialogue, plaintiffs could have educated defendants either with more data, or with a more refined and focused discussion of the materials under consideration. For example, Dr. Bonnichsen questions whether the projectile point in the skeleton's hip is properly classified as a Cascade Point. See Bonnichsen affidavit. Other unresolved questions were suggested by his review of images generated from the CT scan electronic data which defendants did not provide until February 2001, and then only on Court order. Id. Dr. Owsley's review of images from that same data raises other questions. See Owsley affidavit. Defendants' argument that plaintiffs had a full and fair opportunity to participate in the administrative process is not credible.

Footnotes

"Arbitrary and capricious" and "substantial evidence" are not two different standards of review in terms of the level of deference or the rigor of review. The latter is merely one subset of the former. Association of Data Processing Service Organizations Inc., v. Board of Governors of the Federal Reserve, 745 F.2d 677, 683-84 (D.C. Cir. 1984) (Scalia, J.). The Court's decision also paraphrased the "substantial evidence" standard of review: "On remand, the Corps must critically examine all of the evidence in the record as a whole, and make specific findings that are supported by reliable evidence." Bonnichsen, 969 F. Supp. 652, n.26.

See also Wolff v. McDonnell, 418 U.S. at 560.

Among other things, defendants' interpretation of the term Native American would mean that Kennewick Man could eventually be subject to reburial even if it is never culturally affiliated. See NAGPRA Review Committee's proposed recommendations for regulations on the disposition of culturally unaffiliated remains. SER 150.

See Defendants' Memorandum in Support of Motion to Strike, dkt. No. 432 at 10.

It is important "to maximize the independence of deciders within each agency by insulating them from contact with enforcement and investigatory personnel. If the appearance and reality of bias is minimized, not only will two of the essential measures of good procedure -- satisfaction and fairness -- be enhanced, but in the long run the agency can maximize the efficiency measures as well. That is because, as Judge Friendly suggests, a more impartial tribunal may reduce the need (and perhaps the demand) for additional procedural ingredients such as confrontation, a transcript, and oral presentation." Verkuil, 43 U. Chi. Rev. at 751.

Defendants contacted Dr. Haynes without the knowledge or consent of his counsel. SER 85 (Schneider 2/18/99); SER 90 (Barran 8/27/99).

By way of example, defendants assert that plaintiffs do not dispute that the Coalition claimants have "always" lived near Columbia Park. Defendants' Memorandum at 16. Plaintiffs do dispute that, and defendants' contrary assertion shows that they likely never read plaintiffs' submissions. See, for example, the items listed in Appendix C. Most of these raise, discuss, or advert to that question. Defendants ignore these materials as if they did not exist. Had plaintiffs been told of the oral traditions cited by the Coalition to support its claim, they could have supplied, amplified and explained issues (such as the identification of past geologic events) that make that claim implausible.