Thursday, Apr. 16, 1998

Memorandum in support of motion to vacate second administrative action

INTRODUCTION

In June 1997, the Court remanded this case to defendants with instructions they disregarded. Contrary to law, defendants concluded that the skeleton is Native American solely because of its age, and that affiliation to a Coalition is proper under NAGPRA. They also improperly relied upon a non-precedential ICC settlement, failed to consider contrary evidence, and failed to articulate a rational basis for their decisions.

Defendants' decisionmakers had improper ex parte contacts with the Coalition, the White House, and government trial counsel. Defendants withheld the substance of many of these contacts from the record, and withheld evidence from plaintiffs. They coached the Coalition on how to present its claims and applied an improper presumption in favor of the Coalition. The decisionmakers were biased.

Defendants buried the skeleton's discovery site without first consulting plaintiffs and without conducting appropriate investigations and evaluations as required by law. They have not been candid about the skeleton's curation, and they improperly used FOIA to withhold information from plaintiffs.

It would be futile and unfair to plaintiffs to remand for a third round of administrative proceedings. The Court should grant plaintiffs' requests for noninvasive studies and fashion other appropriate relief.

DISCUSSION

I. DEFENDANTS' 1492 RULE IS CONTRARY TO LAW.

A. The 1492 Rule Was Improperly Adopted.

The record is bare on how the 1492 Rule was adopted or why. It does not appear in

NAGPRA, the regulations, or in the official comments to the regulations. Other than Dr. McManamon's letter, there is no trace in the record of its origin or development.

Congress created a regulatory process that requires agencies to learn from the experience and input of the public and to maintain a flexible and open-minded attitude towards their own rules. Chocolate Manufacturers Association v. Block, 755 F.2d 1098, 1103 (4th Cir. 1985). Agencies may not circumvent the rulemaking requirements of the APA. Wyman-Gordon, 394 U.S. at 764-66; Anaheim, et al. v. FERC, 723 F.2d 656, 659 (9th Cir. 1984). Defendants ignored those requirements and adopted the 1492 Rule without notice or opportunity to comment.

B. The 1492 Rule Ignores Congress' Language And Intent.

It is not an agency's right to broaden the coverage of a limited law. See Sutton v. United Air Lines, 527 U.S. 471, 483-84, 119 S. Ct. 2139, 144 L.Ed.2d 450 (1999) (invalidating disability guidelines that ignored statutory phrase "substantially limited" which limited coverage of law); Lechmere Inc. v. NLRB, 502 U.S. 527, 532, 112 S. Ct. 841, 117 L.Ed. 2d 79 (1992) (invalidating extension of employee rights to non-employees). "[S]uch administrative hubris [should] be reigned in, and * * * the task of improving the basic provisions of statutes be left to the same body that wrote them in the first place." Brungart, 231 F.3d at 797. "It is for the Congress * * * to consult political forces and then decide how best to resolve conflicts in the course of writing the objective embodiments of law we know as statutes." Circuit City Stores, Inc., 2001 WL 273205 at 31. Agencies may not adopt a calendar date to limit a benefit granted by law. Guerrero v. Stone, 970 F.2d 626, 636 (9th Cir. 1992) (invalidating calendar date restriction to limit military benefits).

Defendants' choice of 1492 ignores the fact that there is no special significance to Columbus for these purposes. He never visited the "area now encompassed by the United States" (to use Dr. McManamon's words). He landed in Cuba, the Bahamas and other places to the south. There is a lot of land and ocean between the Bahamas and Kennewick. Columbus' voyages had no immediate impact on human developments in the Northwest and do not rationally relate to how those populations are treated for purposes of NAGPRA.

The 1492 Rule would indiscriminately and unreasonably sweep into NAGPRA's ambit remains and objects that have no logical relationship to the purposes of the statute. Vikings explored widely in the New World centuries before Columbus, and Japanese fishermen probably had pre-1492 contacts with the Americas. Despite having no relationship to present-day Indians, defendants would classify Viking and Japanese remains as Native American for purposes of NAGPRA, a result that cannot be reconciled with the words of NAGPRA.

Congress chose a single date to define "Native Hawaiian" which is sensible because the Hawaiian Islands are confined spaces. The vastness of the continental United States is a much different matter. Defendants' 1492 Rule ignores those differences, and ignores whether those differences might be why Congress picked a date for defining "Native Hawaiian" but not "Native American." Congress' choice has a legal significance that defendants ignored. When Congress includes language in one section of a statute but omits it in another section, it is generally presumed it acts "intentionally and purposely." Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 78 L.Ed.2d 17 (1983).

Footnotes

See Barahona-Gomez v. Reno, 167 F.3d 1228, 1235 (9th Cir. 1999) (amount of discretion determines whether substantive); San Diego Air Sports Center, Inc. v. FAA, 887 F.2d 966, 969-70 (9th Cir. 1989) (exception to formal rulemaking to be narrowly construed and reluctantly countenanced).

Defendants admit they would even classify European remains that are 12,000 years old as Native American under their Rule. ER 491; Tr. of September 14, 1999 at 47.

Defendants themselves seem uncertain about their Rule. Dr. McKeown favored using European colonization as the defining moment. ER 83; DOI 03497. He concedes that plaintiffs' use of "Native American" was consistent with its "common meaning" but he thought that meaning engenders racial and racist commentary. Dr. McManamon admonished his advisers to use "American Indian" to avoid confusion with "our legal use of the term 'Native American.'" ER 101; DOI 05576.

Smithsonian National Museum of Natural History, Anthronotes, Vol. 22, No. 1, at 3-4 (Fall 2000) (Viking objects in Maine) ER 389-90; N. Davis, The Zuni Enigma, W.W. Norton & Company, 2000 at 99-101 (Japanese shipwrecks in North America) ER 392-93.