Wednesday, Jul. 01, 1998

Plaintiff's reply memorandum

I. DEFENDANTS HAVE NOT SHOWN THAT THEIR 1492 RULE IS PROPER.

A. The 1492 Rule Is Not A "Long-Standing Interpretation."

Defendants argue that the 1492 Rule is not really a rule, but only an interpretive pronouncement that was prepared simply to inform the Court of their "long-standing interpretation of statutory and regulatory terms." Defendants' Memorandum at 9. Administrative practices that are contrary to the law may be overturned no matter how long-standing. Connecticut Light and Power Co. v. Federal Energy Regulatory Commission, 627 F.2d 467, 473 (D.C. Cir. 1980) ("it would 'make a mockery of the judicial function' to rule 'that administrative agencies are entitled to violate the law if they do it often enough'"). See also Baltimore & Ohio R. Co. v. Jackson, 353 U.S. 325, 330-331, 77 S. Ct. 842, 1 L.Ed.2d 862 (1957) (overruling administrative practice of 60 years' duration); United States v. E. I. duPont de Nemours & Co., 353 U.S. 586, 590, 77 S. Ct. 872, 1 L.Ed.2d 1057 (1957) (overruling administrative practice of 40 years' duration).

B. No Deference Is Due An Improperly Adopted Rule.

The APA permits agencies to act either by adjudication or rulemaking. Adoption of the 1492 Rule was not done by adjudication. Nor was it adopted as a formal rule; defendants concede they did not allow for notice and comment.

Legislative rules must be adopted through notice and comment procedures. Those formalities are required whenever a rule modifies or effects a change in existing rights, law or policy, or is adopted pursuant to a statutory directive or under statutory authority. Multnomah Legal Services Workers Union v. Legal Services Corp., 936 F.2d 1547, 1554 (9th Cir. 1991). Procedural invalidity is fatal even for rules that would otherwise be substantively appropriate. Mt. Diablo Hospital District, 860 F.2d at 955. A directive is legislative if it carves out a per se exception or establishes a binding norm that narrowly limits administrative discretion. Mt. Diablo Hospital District, 860 F.2d at 959 (per se exception to timing of Medicare reimbursement); Linoz v. Heckler, 800 F.2d 871, 877 (9th Cir. 1986) (exception to ambulance reimbursement regulation); United States v. Picciotto, 875 F.2d 345, 346-47 (D.C. Cir. 1989) (permit restrictions). Compare Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1016 (9th Cir. 1987) (directive was interpretive because director was "free to consider" facts and "evaluate the sympathetic appeal" of applicant for deferral).

Defendants argue the Court should defer to their constructions, but an agency's formal regulations are entitled to deference only if the statute is ambiguous, and an agency's interpretation of its regulations is entitled to deference only when the regulation is ambiguous. Christensen, 529 U.S. at 586-87, 589. Defendants do not identify any ambiguity in the statute or regulations, or how the 1492 Rule might resolve it, and Dr. McManamon said there was none. In his 1997 letter, he cited the statute and regulations and wrote "we consider this definition clear and self-explanatory." SER 21, DOI 10842.

C. The Rule Cannot Be Saved By Post Hoc Rationalizations And Revisions.

1. Defendants used only chronological age.

2. Defendants may not change their view on old European remains to avoid plaintiffs' motion.

3. Defendants mischaracterize the purpose of their rule.

Defendants create the impression that the 1492 Rule is an interpretation of the word "indigenous." Defendants' Memorandum at 9. That is not what Dr. McManamon said he was doing when he announced the Rule. He offered it not as an interpretation of the word indigenous but as an interpretation of the term "Native American." SER 21, DOI 10842. It is one thing to interpret the meaning of a word used by Congress. It is another thing to throw out a complete definition crafted by Congress and substitute a new definition.

4. Defendants' extinct tribe example misses the point.

Defendants quibble with Congress' use of the words "that is indigenous" and claim that such wording is unworkable because it would exclude remains from a tribe that died out long ago. It is not defendants' right "to improve legislation" that Congress has written. Brungart v. Bell South Communications, 231 F.3d 791, 797 (11th Cir. 2000), cert. den., 2001 WL 242544 (2001).

D. Defendants' Excursions into Legislative History And Canons Of Construction Do Not Save The Rule.

1. Defendants argue that Dr. Keith Kintigh from the Society for American Archaeology supports application of NAGPRA to all ancient remains, whether they have living descendants or not. The views of a private citizen (or his interest group) are irrelevant. "We ought not attribute to Congress an official purpose based on the motives of a particular group that lobbied for or against a certain proposal." Circuit City Stores Inc. v. Adams, 121 S. Ct. 1302, 1311 (2001). Witnesses' statements at committee hearings "cannot be considered as a guide to what Congress intended, since Congress has not delegated to organizations or individuals appearing before its committees the authority to construe a statute." United States v. Fairfield Gloves, 558 F.2d 1023, 1027 (Cust. & Pat. App. 1977).

3. Defendants cite recent remarks by Senator Inouye. Defendants' Memorandum at 5, n.6. "The interpretation given by one Congress (or a committee or Member thereof) to an earlier statute is of little assistance in discerning the meaning of that statute." Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 185, 114 S. Ct. 1439, 128 L.Ed.2d 119 (1980) (citing authorities); Multnomah Legal Services Workers Union, 936 F.2d at 1555.

5. Defendants cite a treatise on statutory construction that when Congress amends a law to delete words, it can be presumed that a change of meaning was intended. Defendants' Memorandum at 12, n.11. There was no prior statute before NAGPRA.

Footnotes

See 43 CFR 10.2(d) ("of, or relating to, a tribe, people, or culture indigenous to the United States"). Neither the regulations nor the official comments indicates that anything significant was intended by the omission of Congress' term "that is."

In June 1997, they argued to the contrary (i.e., that age was not the only indicator for classifying remains as Native American). SER 130-31, Tr., June 2, 1997 at 12-13.

That the Rule permits no other interpretation is also apparent from defendants' actions here. They merely plugged in the results from the age data (older than 1492) and ended the inquiry: "A series of radiocarbon dates now available from the Kennewick skeletal remains indicate a clearly pre-Columbian date for the remains * * *. It is reasonable to conclude that the human remains from Columbia Park in Kennewick, WA are 'Native American' as defined by the Native American Graves Protection and Repatriation Act." ER 110, DOI 06048. The Secretary subsequently confirmed that the Native American determination was based upon chronological information. SER 29, DOI 10012.

Defendants also ignore the imprecision inherent in the dating of prehistoric remains and objects. For example, Kennewick Man's radiocarbon age was expressed in terms of a "plus or minus" range of 40 years. Defendants do not explain how their Rule would apply to a skeleton that is radiocarbon dated to 1480 (or 1450, 1460, 1470) plus or minus 40 years, and thus is just as likely to be post-Columbian as pre-Columbian.

In Scribner v. Worldcom, Inc., 2001 WL 476879 (9th Cir. 2001), the Ninth Circuit recently quoted from Through the Looking Glass to characterize a similar attempt to dispute the plain meaning of words (and disagreed with Humpty Dumpty's view that words are infinitely elastic): "When I use a word,"Humpty Dumpty said in a rather scornful tone, "it means just what I choose it to mean--neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things."

Defendants concede that the law was written to address complaints about "disrespectful treatment of their ancestors' human remains" (referring to modern Native Americans). Defendants' Memorandum at 1. An extinct tribe has no descendants and, therefore, is not ancestral to anyone living today.

The is no evidence that Dr. Kintigh speaks for anyone other than himself, and in any event the level of his support in the archeological community (most of whom do not study human skeletal remains) is irrelevant. Judicial disputes are not decided by opinion polls.

NAGPRA was intended to apply to Native Alaskans and Native Hawaiians as well as American Indians. See SER 146 (Senate Report).

See also Sullivan v. Finkelstein, 496 U.S. 617, 631-32, 110 S. Ct. 2658, 110 L.Ed.2d 563 (1990) (Scalia) (criticizing any attempt to "smuggle into judicial consideration legislators' expressions not of what a bill currently under consideration means" but of what current legislators thought their predecessors intended; "[A]rguments based on subsequent legislative history, like arguments based on antecedent futurity, should not be taken seriously, not even in a footnote." Id. See Slaven v. BP America, 973 F.2d 1468, 1475 (9th Cir. 1992) (after the fact legislative observations are not part of the legislative history).