Wednesday, Jul. 01, 1998

Plaintiff's reply memorandum

PLAINTIFFS' REPLY MEMORANDUM

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

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

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

B. No Deference Is Due An Improperly Adopted Rule.

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.

4. Defendants' extinct tribe example misses the point.

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

II. DEFENDANTS' CULTURAL AFFILIATION DETERMINATION VIOLATED THE ADMINISTRATIVE PROCEDURE ACT.

A. Defendants Failed To Consider Plaintiffs' Evidentiary Submissions.

B. The Secretary Failed To Consider Other Relevant Evidence.

C. Defendants' Memorandum Is At Odds With The Determination.

D. Defendants Apply An Erroneous Standard In Discussing The Evidence.

E. Defendants Erred In Considering A Non-Precedential ICC Decision.

F. A 5500 Year Gap Is Not Reasonable.

III. DEFENDANTS' REPATRIATION TO A COALITION VIOLATES THE STATUTE.

IV. DEFENDANTS USE OF INFORMAL ADJUDICATION WAS IMPROPER AND CONTRARY TO THE COURT'S ORDER.

A. Informal Adjudication Was Not Appropriate In This Case.

B. Defendants Cannot Justify Their Ex Parte Contacts.

C. Defendants Deprived Plaintiffs Of Other Protections Mandated By Due Process.

D. There Is No Evidence Defendants Were Concerned About Plaintiffs' Views.

V. DEFENDANTS' FIRST AMENDMENT ARGUMENTS MISSTATE THE LAW AND FACTS.

A. Defendants Do Not Apply The Proper Standard Of Analysis For Laws That Implicate Constitutional Issues.

B. Defendants' Offer Insufficient Excuses for Their Establishment Clause Violations.

C. Defendants' Arguments On Study Are Still Insufficient.

VI. DEFENDANTS VIOLATED NHPA .

VII. DEFENDANTS' CURATION ARGUMENTS ARE NOT CREDIBLE.

VIII. DEFENDANTS VIOLATED THE FREEDOM OF INFORMATION ACT.

IX. A SECOND REMAND TO DEFENDANTS WOULD NOT BE APPROPRIATE.