Wednesday, Jul. 01, 1998

Plaintiff's reply memorandum

VI. DEFENDANTS VIOLATED NHPA .

Defendants do not dispute that plaintiffs were "interested parties" within the meaning of the National Historic Preservation Act ("NHPA"), or that plaintiffs were entitled to receive information and express their views about the site cover-up project. Defendants' Memorandum at 37. Defendants' only defense is that plaintiffs' views were considered during the Section 106 process. That defense is not supported by the record.

Without citing any authority, defendants argue that plaintiffs' NHPA claims are "untimely" because they were not raised until three years after the project was completed. NHPA does not have an explicit or implicit statute of limitations. Tyler v. Cisneros, 136 F.3d 603, 607-08 (9th Cir. 1998). Moreover, as defendants know, plaintiffs could not assert additional claims because of the stay that was imposed in June 1997, months before the cover up. Plaintiffs did, however, raise their objections before the Court. See Defendants' Memorandum at 40. Defendants cannot claim now that they were not on notice of plaintiffs' opposition to the project.

Moreover, defendants' arguments ignore the fact that they acted during the pendency of litigation in the face of an order directing them to preserve the scientific value of the remains. Bone fragments appearing to be from the Kennewick Man skeleton were still being found at the site even on the eve of its burial. See SER 17c, COE S-346. Plaintiffs reminded defendants of the Court's order to preserve the scientific value of the remains and expressed concern that pieces of the skeleton were still at the site. See SER 17a, COE S-293. Defendants did not respond.

The fact that the site has been buried does not mean that relief is impossible. Among other things, plaintiffs seek declaratory relief and defendants may still be ordered to investigate how they might correct the consequences of their precipitous decisions. See Desert Citizens v. Bisson, 231 F.3d 1172, 1187 (9th Cir. 2000) (party acts at its peril in acting knowing that legal challenges are pending).

Footnotes

The Coalition's opposition to plaintiffs' study requests did not extend to defendant's noninvasive studies. See SER 10, COE 6992 (Nez Perce); SER 11, COE 7080 (Umatilla). The Colville even advocated DNA testing. SER 98, DOI 02719.

The scientific study provision found in 25 U.S.C. 3005(b) does not compel a different conclusion. That provision applies only to existing collections. The problems and concerns involved in those situations are much different from the circumstances presented by new discoveries. In addition, section 3005(b) merely provides a mechanism for delaying repatriation of items that have been affiliated. It does not preclude other studies that have no effect on the timing of a repatriation.

Defendants retained the right to "coordinate" all public statements by the Burke Museum (SER 4, COE 5221), and they imposed only limited confidentiality restrictions on their study team members, but permitted them to use the information publicly. SER 99, DOI 04183 (Rose); SER 101, DOI 04189 (Powell).

To support their claim that they reviewed plaintiffs' objections, defendants cite only S-534 and S-591. Defendants' Memorandum at 38. These documents are merely transmittal letters enclosing Dr. Stafford's letters, which as already noted Lt. Curtis refused to discuss.

Defendants do not dispute that their notice to plaintiffs was mailed immediately before the Christmas holiday (December 23), sent by ordinary mail, received on Friday December 26, and that they demanded a response by December 29. See ER 306, S-614. S-614 also shows that the December 23 letter responds to a request plaintiffs made on November 10. Defendants do not explain why it took them 43 days to notify plaintiffs or why, having waited 43 days, they established a six day response deadline without making any effort to deliver the notice in person or to inquire whether plaintiffs or their counsel might have plans for the holidays. Nor do they explain why they did not delay their process when they received Mr. Schneider's response explaining that the letter had not arrived in time for any discussion with the plaintiffs. ER 302, COE S-596. As it turned out, defendants never even acknowledged the letter.

Defendants' citation to their decision to withhold project implementation until April 6 to permit plaintiffs to seek judicial relief (Defendants' Memorandum at 40) has little meaning. Defendants did not notify plaintiffs of their plans except through their status report although they sent a personal letter to the tribes. SER 17b, COE S-322.