Thursday, Apr. 16, 1998

Memorandum in support of motion to vacate second administrative action

MEMORANDUM IN SUPPORT OF MOTION TO VACATE SECOND ADMINISTRATIVE ACTION

ROBSON BONNICHSEN, C. LORING BRACE; GEORGE W. GILL, C. VANCE HAYNES, JR., RICHARD L. JANTZ, DOUGLAS W. OWSLEY, DENNIS J. STANFORD and D. GENTRY STEELE,

Plaintiffs,

v.

UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, U.S. ARMY CORPS OF ENGINEERS, U.S. DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE, FRANCIS P. McMANAMON, ERNEST J. HARRELL, WILLIAM E. BULEN, JR., DONALD R. CURTIS, LEE TURNER, LOUIS CALDERA, BRUCE BABBIT, DONALD J. BARRY, CARL A. STROCK,

Defendants.

TABLE OF CONTENTS

Abbreviations

INTRODUCTION

DISCUSSION

I. DEFENDANTS' 1492 RULE IS CONTRARY TO LAW.

A. The 1492 Rule Was Improperly Adopted.

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

C. The 1492 Rule Is Arbitrary And Unreasonable.

A. A Coalition Formed To Make A NAGPRA Claim Is Not A "Tribe."

B. The Coalition Is An Improper Claimant For Other Reasons As Well.

C. An ICC Settlement Is Not A Final Judgment As Required By NAGPRA.

D. Long-Term Continuity Is Not A "Shared Group Identity."

E. The Determination is Arbitrary and Capricious for Other Reasons.

III. DEFENDANTS VIOLATED THE APA AND DUE PROCESS GUARANTEES.

A. The Decisionmakers and Coalition Had Improper Ex Parte Contacts.

B. The Decisionmakers Had Ex Parte Contact with Other Agencies.

C. Ex Parte Contacts Occurred With Defendants' Trial Attorneys.

D. Defendants Foreclosed Meaningful Participation by Plaintiffs.

E. Defendants' Decisionmaking Process Was Defective For Other Reasons.

IV. DEFENDANTS VIOLATED THE ESTABLISHMENT CLAUSE.

V. DEFENDANTS IMPROPERLY PREVENTED STUDY BY PLAINTIFFS.

A. Defendants Ignored Plaintiffs' First Amendment Rights.

B. Defendants Interfered with Plaintiffs' ARPA Rights.

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

A. Defendants Refused To Consult With All Interested Parties.

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

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

VII. DEFENDANTS HAVE NOT PROPERLY CURATED THE SKELETON.

VIII. DEFENDANTS VIOLATED FOIA TO WITHHOLD INFORMATION.

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