Thursday, Apr. 16, 1998

Memorandum in support of motion to vacate second administrative action

VI. THE SITE COVER-UP VIOLATED NHPA AND DESTROYED EVIDENCE.

NHPA protects the "historic heritage" of the nation in historic and prehistoric resources. 16 U.S.C. 470(b), 470-1(3). See Fein v. Peltier, 949 F. Supp. 374, 378 (D. V.I. 1996), recon.den., 1997 WL 180771 (D. V.I. 1997). NHPA applies to all federal properties that are included, or eligible for inclusion, in the National Register of Historic Places.

A. Defendants Refused To Consult With All Interested Parties.

Federal agencies must consult with interested parties before any "undertaking" that affects an eligible property. 16 U.S.C. 470f, 36 C.F.R. 800.1(c); Attakai v. United States, 746 F. Supp. 1395, 1408 (D. Ariz. 1990). An undertaking is "any project, activity, or program that can result in changes in the character or use of historic properties." 36 C.F.R. 800.2(o). Burial of the discovery site affected its "character or use," and was an undertaking.

Plaintiffs were "interested parties," because they are "individuals that are concerned with the effects of an undertaking on historic properties," 36 C.F.R. 800.1(c)(2) 800.5(e). Agencies must "provide an adequate opportunity for members of the public to receive information and express their views." 36 C.F.R. 800.5(e)(3). Defendants violated that rule.

Even though planning for site burial started shortly after the skeleton's discovery, defendants withheld notice to plaintiffs until the end of December 1997 when construction bids were already being solicited. ER 306; COE S-614. Remarkably, defendants sent this notice by regular mail, and gave plaintiffs only six days from the date of mailing to comment. Defendants, however, had sought Coalition input on their initial plans as early as October 9, 1996. ER 272; COE S-409. When new plans were developed in 1997, defendants again notified the Coalition, held meetings with them, and kept them advised of developments. See Appendix B.

Plaintiffs do not object that defendants consulted with the Coalition. They do object that they were ignored and not given an "adequate opportunity" to receive information and express their views. 36 C.F.R. 800.5(e)(3). Plaintiffs also object that defendants concealed their efforts to convince the responsible state agency (Washington SHPO) that the cover up would have no adverse effect on the site. Plaintiffs learned of this conduct too late to intervene. ER 280, 285, 286-87; COE S-435, S-474, S-480-81.

B. Defendants Did Not Assess or Mitigate Adverse Effects on the Site.

The decision to bury the site was made November 10, 1997 by the White House and put "on a fast track." ER 308; COE at S-821. Lt. Col. Curtis directed use of riprap and set a completion date of "no later than 1 January 1998." Despite warnings from a Corps scientist that "it would seem advisable to be cautious about long term deleterious effects of engineering site protection measures," defendants ignored their assessment and mitigation obligations. The Section 106 process must be completed before the approval of expenditure of federal funds. 36 C.F.R. 800.3(c).

(2) Since all site stabilization techniques have potentially negative effects, each technology must be evaluated to eliminate those likely to have an adverse impact on cultural deposits. ER 351; Stabilization Guidelines at 31. Defendants did not do an evaluation. When plaintiffs forwarded letters objecting to the burial, Lt. Col. Curtis refused to address the objections. ER 282; COE S-451. Defendants did not even acknowledge other objections. ER 302; COE S-596-99 (Schneider, 12/29/97).

(4) Any loss of potential data from a site must be mitigated. 36 CFR 800.5(e); Stabilization Guidelines at 25. Options include data recovery through excavation (ER 345-47; Stabilization Guidelines at 25-27) or providing means for later access to site cultural components (ER 358; WES Technical Notes, ASPPN II-3, at 9). Defendants made no provision for the latter option, and actively blocked efforts by the Huckleberry research team to pursue the former.

(5) Site preservation must include a regular, systematic program for monitoring post-stabilization conditions. See ER 362; WES Technical Notes, ASPPN I-10, at 2. There is no evidence that defendants have made any effort to monitor the site.

C. Burial of the Site Obstructed the Gathering of Evidence.

Many questions about the skeleton have not been resolved, including its original placement in the site, the geologic age of the site, whether that age is inconsistent with the skeleton's age, and how the skeleton was deposited there. Any cultural deposits or other human remains at the site could have provided evidence of Kennewick Man's cultural or biological connections, but are now buried under tons of rubble. Even if future investigations are permitted, the damage to the site may be irreparable.

Footnotes

16 U.S.C. 470f. The discovery site is part of the Tri-Cities Archaeological District listed on the National Register of Historic Places in 1984. ER 301; COE S-544; www.hr.nps.gov.

Defendants did not dispute that it did. The Corps' submission to the Washington Office of Archaeology and Historic Preservation ("SHPO") cited Section 106 (16 U.S.C. 470f) as controlling. ER 294; COE S-490.

Drawings were in existence before October 9, 1996. ER 272; COE S-409.

The ARPA permit application filed by the Huckleberry research team on August 26, 1997 appears to have been the precipitating event for revival of the Army Corps earlier, abandoned proposal to bury the site. Earlier Army Corps documents in 1997 indicate little concern for immediate "stabilization" of the site.

See ER 279; COE S-432, also cautioning that: "The erosion obviously occurring here is serious but not as serious as that occurring at many other Corps of Engineers Reservoirs." ER 278; COE S-431.

"All significant sites should be subject to an archaeological review with sufficient excavation to evaluate each site prior to embankment cover." ER 358; WES Technical Notes, ASPPN II-3 at 9.

See also ER 293; COE S 487: ("Presently, there is insufficient data available to assess the terrace area."). A few auger cores and bank sediment profiles were taken at the site in December 1997. These, however, were not sufficient to identify the site's cultural components. See ER 370; WES Draft Phase Two Report at 44 ("Only minimal archaeological interpretation can be justified at this time"). Furthermore, they were not made in time to assist in the decisionmaking process. See Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000) ("An assessment must be prepared early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made").

Evaluation requires documented analysis of all relevant considerations. See ER 353-54; Stabilization Guidelines at 33-34.

ER 271, 288, 298-300; COE S-407, S-482, S-534, S-535-36. Some of Dr. Stafford's concerns were: loss of potentially important cultural and scientific data; creation of obstacles to future investigation of the site; contamination of the site by foreign sediments and modern organic carbons.