Wednesday, Jul. 01, 1998

Plaintiff's reply memorandum

IX. A SECOND REMAND TO DEFENDANTS WOULD NOT BE APPROPRIATE.

Defendants argue that even if they have violated the law, the Court's only option is to remand the case to them for a third additional round of administrative proceedings. Defendant's Memorandum at 43-44. The Court's authority is not that limited. See Plaintiffs' Memorandum at 39-40. Defendants do not discuss or cite any of these authorities, although their principles are applicable here.

Defendants have often said one thing and done another. They said they would keep an open mind about the issues to be resolved, and then closed their eyes to plaintiffs' evidence. They said they would compile a comprehensive administrative record that would include all relevant documents. SER 8, COE 6926. The final record, however, contains omissions such as correspondence between the parties, documents filed with the Court, and meeting notes that ought to exist. Defendants said that plaintiffs' requested C14, DNA and stable isotope tests were "too destructive" (four grams of bone), and then used many times that amount for their own tests. Despite contrary assurances to the Court, they secretly resumed the practice of allowing tribal religious ceremonies with the skeleton. ER10, COE 0000357; SER 9, COE 6928.

Almost five years have elapsed now since plaintiffs first asked to study the skeleton. All of them have lost five years from the most productive span of their careers. Until those studies have been completed, the Court should retain jurisdiction so plaintiffs' examinations will not be frustrated by unreasonable demands and restrictions. Defendants have shown unremitting hostility to plaintiffs and obstructionism. Even as recently as only three months ago, defendants were not forthcoming with plaintiffs' representatives during their inspection of the image record, and made them guess about what was in the record.

The Court should also retain jurisdiction so plaintiffs can be given an opportunity to investigate the discovery site to determine how it has been affected by defendants' cover-up and what can be done to mitigate any adverse effects. Discovery may also be needed for final adjudication of any other issues that cannot be resolved on the basis of the existing record.

RESPECTFULLY submitted this 4th day of June, 2001.

BARRAN LIEBMAN LLP

Footnotes

Even their own attorney commented on how long it takes for government to do anything. SER 135 (Tr. of Sept. 14, 1999 at 46).

To get their samples, they did not hesitate to take a large section from a potentially diagnostic bone. SER 167-68 (Owsley at 6-7).

SER 158-59 (Hawkinson). When plaintiffs asked that the record be brought to Portland where it would be more convenient for the parties, defendants objected on grounds of security and cost. They failed to tell the Court that they have a back-up copy of the record that could have been used for that purpose. SER160 (Hawkinson Aff).