Thursday, Apr. 16, 1998

Memorandum in support of motion to vacate second administrative action

IX. THE COURT SHOULD AVOID THE FUTILITY OF ANOTHER REMAND.

Defendants expressed the intent in 1996 to make a "clear, unequivocal demonstration of the Corps' commitment "to the tribes as being a compassionate and supportive partner in restoring the remains to a condition of proper internment." (ER 396; COE 0656) Despite the remand, that intent did not change. Only a few weeks after signing his Determination, Secretary Babbitt told the National Congress of American Indians that "our partnership has been one of the greatest, most transcendent experiences of my life, and I will always, always be available and fight for your cause, whenever or wherever you call upon me to do so." ER 338; AP news story, November 14, 2000.

"The import of these cases is that when agency delays or violations of procedural requirements are so extreme that the court has no confidence in the agency's ability to decide the matter expeditiously and fairly, it is not obligated to remand. Rather than subjecting the party challenging the agency action to further abuse, it may put an end to the matter by using its equitable powers to fashion an appropriate remedy." 943 F. Supp. 1278, 1288

Defendants have violated fundamental principles of black letter law that are not even arguable. Inexcusable ex parte contacts took place between the decisionmakers, the White House, and the lawyers opposing plaintiffs. These violations of basic fairness were compounded by other improper contacts with the Coalition. Defendants coached the Coalition on how to plead its case. They kept plaintiffs in the dark about the issues and information being considered, but sought Coalition help in opposing plaintiffs' study requests. ER 53-54; COE 8267-8268.

Again and again, plaintiffs have had to return to the Court to compel defendants to do what should be done. Despite prodding from the Court to resolve this matter expeditiously, defendants found one excuse after another to delay the decisionmaking process.

Defendants ridiculed Dr. Owsley, suggesting he be juxtaposed to a news article on space aliens, and raised nothing but objections to plaintiffs' requested studies. Eventually they conducted some of those studies themselves, but excluded plaintiffs. Their acts and decisions cannot be excused as innocent. They had access to enormous legal resources, and they had the Court's instructions. Their treatment of plaintiffs' study claim demonstrates the futility of another remand. Defendants left consideration of that issue to the last week, and then produced a superficial, cut and paste opinion that repeats arguments the Court criticized three years earlier.

Defendants ignored established procedures for how agencies are to do their work. They wrote legislative rules (like the 1492 Rule) with no notice or opportunity for comment, and no apparent consideration of alternatives. Although they are obligated by law to follow the words Congress used in NAGPRA, their use of terms such as "Native American," "shared group identity," "tribe" and "final judgment" bear little resemblance to what Congress wrote or intended. Defendants have given little regard to the Constitution. They accepted religious beliefs as proof of the "truth" of past events, and allowed religious objections to veto requests for study of the skeleton and its discovery site.

If there were but one or two errors here to correct, the Court and plaintiffs might have some reason to believe a second remand might lead to a third decision based on the law and adequately supported by reliable, relevant evidence. But when agencies so evade the law and so ignore rules, policies, guidelines, procedures and this Court's directions, they can no longer ask the Court or plaintiffs to be patient or trusting. The Court should exercise its authority and resolve this case, granting the relief requested in plaintiffs' Amended Complaint. If there are questions about what remedies are most appropriate, the Court may order a further hearing to address those issues.

RESPECTFULLY SUBMITTED this 16th day of April 2001.

BARRAN LIEBMAN LLP

Footnotes

See ER 253, 255; COE S-345, S-349. S. 1768 was introduced March 17, 1998 and HR. 3575 and 3579 were introduced March 27, 1998. The Easter recess started April 4, 1998. Defendants began the site cover-up on April 6, 1998. Dutch Meier of the Army Corps announced that work needed to be completed by April 15, 1998. ER 252; COE S-343. The Easter recess ended April 20, 1998.

See ER 116; DOI 06551 (DNA testing would provide "more time and room for maneuver for DOI/DOJ/COE") (McManamon e-mail).

ER 397 (McKeown 9/24/96).