The Kennewick Man Case | Court Documents | Briefs

Appellees' Answering Brief In Respose to Intervenors-Appellants

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 02-35996 (District Court No. 96-1481 JE (D. Or.))

ROBSON BONNICHSEN, ET AL., Plaintiffs-Appellees,

v.

UNITED STATES OF AMERICA, ET AL., Defendants-Appellants,

and

CONFEDERATED TRIBES OF THE COLVILLE RESERVATION, ET AL., Defendants-Intervenors.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

Appellees' Answering Brief In Response to Intervenors-Appellants

Alan L. Schneider 1437 S.W. Columbia LLP Suite 200 Portland, Oregon 97201 (503) 274-8444

Paula A. Barran Amy Brenner BARRAN LIEBMAN LLP 601 SW 2nd, Suite 2300 Portland, Oregon 97204 (503) 228-0500

Of Attorneys for Plaintiffs-Appellees

TABLE OF AUTHORITIES

STATEMENT OF JURISDICTION

Appellees ("Plaintiffs") accept appellants' ("Claimants") statement of jurisdiction with the following modification.

The District Court also had jurisdiction pursuant to 5 U.S.C. §702, 16 U.S.C. §470 et seq., 16 U.S.C. §470aa et seq., 28 U.S.C. §1361 and §2201 et seq., and the First and Fifth Amendments of the United States Constitution. ER 93.

ISSUES PRESENTED

Plaintiffs accept Claimants' statement of issues 1, 5 and 6. Issues 2, 3 and 4 are more accurately stated as follows:

2. Whether the District Court erred as a matter of law in rejecting DOI's interpretation of the term "Native American".

3. Whether the District Court erred in vacating DOI's finding that the skeleton is culturally affiliated with Claimants.

4. Whether the District Court erred in holding that the agencies violated the Administrative Procedures Act ("APA"), 5 U.S.C. §551 et seq.

Claimants' arguments also raise the following issue:

7. Whether the District Court erred in vacating DOI's determination that Claimants are entitled to the skeleton based upon aboriginal occupation of the discovery site.

STATEMENT OF THE CASE

Claimants' statement of the case is incomplete and inaccurate. Plaintiffs offer the following corrections and additions:

1. The Native American Graves Protection and Repatriation Act ("NAGPRA"), 25 U.S.C. §3001 et seq., does not apply to Kennewick Man's skeleton if it is not Native American as defined by that statute.

2. The studies requested by Plaintiffs are not needless. The Kennewick skeleton can provide important information about human colonization of the Americas and human evolution generally. The agencies' investigations did not include all matters that Plaintiffs seek to examine, and questions exist about the accuracy of data and conclusions reported by the agencies. In any event, their data and conclusions must be verified by independent observers.

3. The Army Corps of Engineers (the "Corps") did not agree to work with Plaintiffs. It opposed Plaintiffs' requests, and Plaintiffs were excluded from the agencies' investigations of the skeleton. The court ordered the agencies to provide Plaintiffs with advance notice before any transfer of the skeleton.

4. The Corps' second motion to the District Court was a motion for partial summary judgment. It did not appeal denial of that motion. Bonnichsen, et al., v. United States, 969 F. Supp. 628 (D. Or. 1997).

5. In January 2000 the Department of the Interior ("DOI") concluded that the skeleton is Native American as defined by NAGPRA. That decision (the "Barry Memorandum") was based solely upon the skeleton's chronological age, and not on linguistic or cultural evidence. The Secretary's September 21, 2000 determination confirmed the conclusions of the Barry Memorandum. COE 23; ER 3 ("The Native American determination was based on chronological information supplied by the radiocarbon analysis of bone samples and previously conducted scientific examinations."). Other information was used only to support the "chronological placement and determination." COE 31; ER 11.

6. Attached to the Secretary's determination was a memorandum entitled "Human Culture in the Southeastern Plateau" which summarizes DOI staff's interpretation of the evidence. DOI 10050-76; SER 1148-74. None of Plaintiffs' evidence was discussed in that report.

STANDARDS OF REVIEW

Claimants' description of the applicable standards of review is only partially correct.

A. Lower court decisions concerning whether federal agency proceedings are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law or the procedures required by law are reviewed de novo. League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181 (9th Cir. 2002). Agency decisions must be supported by substantial evidence on the record as a whole. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). Review is also de novo for questions concerning whether the District Court properly interpreted the law. Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 914 (9th Cir.), cert. denied, 516 U.S. 931 (1995).

B. The District Court's decision not to remand is reviewed for abuse of discretion. Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166 (9th Cir. 2002); Sierra Pacific Indus. v. Lyng, 866 F.2d 1099, 1111 (9th Cir. 1989); United States v. Washington, 157 F.3d 630, 642 (9th Cir. 1998), cert. denied, 526 U.S. 1060 (1999).

C. The Secretary's determinations do not warrant any deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The degree of deference varies according to the circumstances. The Wilderness Society v. USFWS, 316 F.3d 913, 921 (9th Cir. 2003); M-S-R Public Power Agency v. Bonneville Power Administration, 297 F.3d 833, 841 (9th Cir. 2002). No deference is given to agency interpretations which conflict with the plain language of the law, or are unreasonable. Public Employees Retirement System v. Betts, 492 U.S. 158, 171 (1989); Arizona Cattle Growers' Ass'n v. U.S. Fish and Wildlife, 273 F.3d 1229, 1237 (9th Cir. 2001).

SUPPLEMENTAL STATEMENT OF FACTS

Claimants' statement of facts is incomplete and misleading. Plaintiffs offer the following supplement.

A. Discovery of the Skeleton and Initial Agency Decisions

The skeleton was discovered by accident in July 1996, and was initially thought to be an historic Euro-American. Subsequent radiocarbon dating showed it to be between 9265 and 9535 calendar years old. COE 8715; SER 323. Human skeletons this old are extremely rare in the Western Hemisphere. Most found to date are only fragments, whereas this one is nearly complete. SER 1407, 1577-78. It is irreplaceable for the information it can provide about early New World populations. SER 1353, 1382, 1387, 1549, 1577-78.

When the skeleton's true age became known, the Corps seized it from the Benton County Coroner. COE 4804, 9168; SER 150, 332. Information about the skeleton was minimal. The only artifact found with it was a stone projectile point in its hip. SER 1640. No one knows who made this projectile point or when it was made. Initial examiners concluded that the skeleton was not American Indian. COE 9372, 9397; SER 362, 368, 1408. Tribal representatives conceded that it was too old to determine its cultural affiliation. COE 9316, 9317; ER 30, 31.

Despite an internal memorandum warning of the problems presented by ancient remains, the Corps decided to demonstrate that it is "a compassionate and supportive partner" of the tribes. COE 656, 666; SER 37, 43. On September 17, 1996, it announced that the skeleton would be given to a coalition of four tribes and one unrecognized band (the "Coalition"). Its newspaper notice declared that the skeleton was Native American and culturally affiliated with the Coalition. COE 9270; SER 344. A later amended notice stated that the skeleton was discovered on land judicially determined to have been aboriginally occupied by the Coalition. COE 9276; SER 346.

Plaintiffs asked the Corps to reconsider. See, e.g., COE 9259, 9265c, 9409, 9412, 9415; SER 337, 341, 370, 374, 375, 1464. Members of Congress, other scientists and the public also urged reconsideration. COE 9116-18, 9129-30, 9255, 9258a, 9258c, 9265a, 9363, 9401; SER 326-28, 329-30, 334, 335, 336, 339, 353, 371. When these efforts failed, Plaintiffs filed suit to prevent transfer of the remains and obtain study access. Plaintiffs are recognized experts on early American prehistory. They have more than 280 years of combined scientific experience. SER 1352, 1359, 1378, 1385, 1391, 1398, 1423, 1605. They have authored or co-authored more than 700 scientific papers and 16 books. Id. They have studied skeletal remains and sites around the world, and are used by federal agencies including the Corps to analyze skeletal remains. SER 1461-62, 1547. Their databases contain information on more than 12,000 remains. SER 1379, 1391, 1568. The Corps considers Dr. Brace to be a "GIANT" in his field. COE 7927; SER 301.

In June 1997, the District Court vacated the Corps' decision to give the skeleton to the Coalition. Bonnichsen, 969 F. Supp. 628. The court found that the Corps' decisionmaking process was flawed, that it had reached a premature decision and assumed erroneous facts, and that it failed to provide a satisfactory explanation for its actions. Id. at 645. The Corps conceded error in accepting the Coalition's aboriginal occupation claim. COE 7658, 7661; SER 285, 286. The court remanded with a directive "to fully reopen this matter, to gather additional evidence, to take a fresh look at the legal issues involved and . . . reach a decision that is based upon all of the evidence." Bonnichsen, 969 F. Supp. at 645.

B. DOI's Investigations

The Corps entered into a decision sharing agreement with the Department of the Interior ("DOI"). DOI 10838-40; SER 1279-81. DOI did not start its investigations until February 1999. They confirmed that the skeleton is very different from present-day American Indians. DOI 10691; SER 1267. Its strongest similarities are to South Pacific, Polynesian and Ainu populations, but overall it is unlike any existing human group. DOI 10691, 10692; SER 1267, 1268. DOI's investigators stated that "only a regional time series analysis of a sequence of well-dated human remains from east-central Washington spanning the past 9,000 [years] can provide direct evidence of biological continuity between Kennewick and modern American Indian tribes." DOI 10692; SER 1268. No such sequence of remains exists for this region. DOI 10066-67; SER 1164-65.

New radiocarbon tests were consistent with initial date obtained in 1996, although these results could be slightly older than the skeleton's actual age or as much as 2000 years too young. COE 4022, DOI 10639; SER 100, 1233. DNA tests were unsuccessful, perhaps due to modern contamination or use of suboptimal samples. DOI 10560; SER 1222.

DOI's investigations did not include many of Plaintiffs' proposed studies. Its investigators did not use Plaintiffs' unique databases, or follow Plaintiffs' protocols. SER 1548-49, 1567-68, 1573, 1630d-g. DOI's data cannot be accepted until confirmed by independent investigators. SER 1542-43, 1549, 1557, 1563, 1573, 1580-81. Some of the reported measurements may be wrong. SER 1817, 1818. Unresolved questions also exist over identification of the projectile point in the skeleton's hip, where it entered the body, how many injuries Kennewick Man suffered, his age at death, and whether he was buried at the discovery site by natural or human causes. SER 1550, 1596-98, 1814b, 1816, 1818, 1864.

DOI's cultural affiliation reports failed to establish any connection between the skeleton and the Coalition. DOI repeatedly asked Coalition members for information to support their claim. DOI 4992-96, 7034-38, 8695-96, 8703-05, 8713-18; SER 633-37, 712-16, 850-51, 852-54, 855-60. They responded with accounts about the divine creation of Indian people. DOI 7243-58, 7545-65, 07658-70, 9288-93; SER 718-33, 741-61, 816-31, 1129-34. They also submitted several archaeological reports claiming to find long-term continuity in the region. COE 2776-804; DOI 7597-7633, 7639-50; SER 53-81, 767-803, 804-15. DOI staff found these submissions unpersuasive. DOI 10058, 10063, 10065, 10067, 10072, 10076; SER 1156, 1161, 1163, 1165, 1170, 1174.

Contrary to Claimant's assertions (Br. at 7), Plaintiffs did not participate in the agencies' investigations. Their investigators were selected by DOI and included none of the Plaintiffs. See DOI 10630, 10818, 10823, 10830; SER 1224, 1272, 1274, 1277.

C. Preferential Treatment of the Coalition

Unknown to Plaintiffs and the court, Coalition members were allowed to conduct religious ceremonies with the skeleton. COE 6843b; SER 240. During these ceremonies, the skeleton was handled, plant materials burned over it, and ashes and cedar boughs left in its container. COE 6835, 6846, 7931; SER 236, 244, 302. Claimants were allowed to inspect and add more bones to the collection. COE 6837, 6838; SER 237, 238.

The agencies' decisionmakers had many meetings and telephone conferences with the Coalition, while rejecting Plaintiffs' efforts to learn about the proceedings. COE 7082-83, 7235-36; SER 264-65, 268-69, 1715-20. The Coalition was secretly notified of the issues being considered, given advance copies of key reports and allowed to rebut those reports before the administrative record closed. DOI 5001, 6746, 6982, 8695-96; SER 638, 703, 706, 850-51. Plaintiffs were not shown these reports or told of the issues being considered until after the record closed and a final decision was reached. The agencies coached the Coalition on evidence thought necessary to supplement the record. DOI 8703-5, 8713-19; SER 852-54, 855-61.

D. Destruction of Discovery Site

In April 1998, the Corps buried the skeleton's discovery site under 2,500,000 pounds of rock, dirt fill and artificial logs. COE S-273-74, S-669, S-804-5; SER 407-408, 439, 442-43. The project was done during a Congressional recess to beat enactment of legislation prohibiting any changes to the site without prior court approval. COE S-279-80, 329-30; SER 409-10, 412-13. It was conceded that Plaintiffs were "interested parties." COE S-372; SER 419. Nonetheless, despite Plaintiffs' requests for information, they were not notified of the project until it was ready for bid. COE S-398-402, S-614; SER 421-25, 434. Claimants were notified more than a year earlier and were advised of all project developments. COE 5679, 8684, 8686; S-322, 409-12, 903-05, 912; SER 171, 320, 322, 411, 426-29, 445-447, 450. The project was ordered by the White House. COE S-821; SER 444.

The site was never properly investigated before it was buried. It might have provided information about the skeleton's cultural connections, geologic age and cause of burial. COE 5836-40; DOI 4039-42; SER 179-83, 574-77. Only surface examinations were conducted, and they were so limited even the Corps' scientists considered them inadequate. COE 4871-72; DOI 10758; SER 152-53, 1270. Claimants opposed efforts to investigate the site more thoroughly. COE 4547-48, 4562-63; S-486-87; SER 135-36, 139-40, 430-31.

E. Loss of Bones

The Corps did not discover that parts of the leg bones were missing until more than a year passed. COE 5785-86; SER 174-75. When other bones from the skeleton were mistakenly given to tribal representatives (COE 5608; SER 165), the District Court ordered it moved to a more secure facility. SER 1503.

F. The Second Determination

Prodded by a court imposed deadline, the agencies finally announced their decision on the skeleton's fate in September 2000. COE 23-29; ER 3-9; SER 1616, 1619, 1634-35. It was the same as the 1996 vacated decision in favor of the Coalition. Plaintiffs moved to set it aside. After a two-day hearing and review of the entire 22,000 page administrative record, the District Court issued the decision challenged in this appeal. Citing authority from this Court and the Supreme Court, the court concluded that DOI's chronological test to determine Native American status was improper and not entitled to deference. The court also set aside the Secretary's determination that the remains are culturally affiliated to the Coalition. The court concluded that the Secretary failed to articulate a cogent rationale for his finding of cultural affiliation; he never identified an earlier group as NAGPRA requires; he never explained how he inferred a shared group identity or what that term meant; he never explained what he meant by "geographic evidence"; he failed to provide a rational and ample basis for his decision. The court also concluded that the agencies' decisions "were not made by neutral and unbiased decision makers in a fair process as is required under the APA". Opinion at 23; ER 163.

The court considered that it had already remanded the case once. Given the length of time since the case began and the agencies' obvious bias, it concluded that a second remand would be unproductive. Opinion at 70; ER 210.

The Coalition reconfigured itself by removing the Wanapum who are not a federally recognized tribe. The new coalition (the Claimants) sought and received leave to intervene for purposes of appeal.

SUMMARY OF ARGUMENT

1. Plaintiffs' injury is not disputed. For standing purposes, it was redressable since judicial correction of the wrongful agency conduct was likely to relieve the injury. Claims for overenforcement of NAGPRA are proper, and Plaintiffs' ARPA study claim was not dismissed. The normal standards for redressability are relaxed where as here procedural violations impair concrete interests. Plaintiffs' standing as to their other claims is undisputed.

2. DOI substituted a chronological test for the relationship test specified in Congress' definition of "Native American". DOI's test is not entitled to Chevron deference and was properly rejected by the District Court because: (a) the statute is not ambiguous; (b) Congress did not give DOI authority to make rules of this kind; (c) DOI's interpretation lacks power to persuade; (d) it ignores the statute's plain language; (e) it would produce unreasonable results. The canons of construction for Indian and remedial legislation do not apply here since there is no statutory ambiguity.

3. The Coalition was not a proper claimant since NAGPRA does not authorize joint claims whether for cultural affiliation or aboriginal occupation of the discovery area. In either situation, the statute identifies the appropriate recipient as a single tribe. Repeated violations of the law do not make a practice lawful. Claimants' policy arguments are for Congress, not the courts, to decide.

4. The Secretary's cultural affiliation determination was properly rejected. Contrary to the requirements of the statute and regulations, he failed to: (a) identify the earlier group to which Kennewick Man belonged; (b) show a shared group identity between that group and Claimants; (c) show that Claimants are descended from Kennewick Man's group. The evidence did not support the Secretary's determination. The Secretary relied on speculation and faulty logic, disregarded the conclusions of his own experts, ignored contrary evidence and did not explain the reasons for his conclusions. He failed to explain important terms and substituted his own standards for those of Congress.

5. The Secretary's aboriginal occupation determination was improper. He impermissibly disregarded the statute's unambiguous requirement of a "final judgment" of the Indian Claims Commission or the Court of Claims. In addition, his determination was not properly adopted and was contrary to prior admissions in the case. The Umatilla's 1966 ICC suit never recognized any tribe as having aboriginal title to the discovery area, and the settlement dismissing the suit expressly prohibited using it as a precedent in any other case.

6. The District Court properly found that the agencies violated APA and due process protections. Their bias in favor of Claimants and against Plaintiffs was obvious and pervasive. The agencies excluded Plaintiffs from their proceedings, but repeatedly conferred with Claimants' representatives. Claimants received advance copies of reports, access to other information, opportunities to supplement the record, and coaching on how to present their claims. The agencies ignored Plaintiffs' evidence and prejudged issues. The proceedings here were quasi-judicial, and appropriate procedural safeguards were required. The agencies' consultation obligations are not a license to be biased or unfair.

7. The District Court's decision not to remand to the agencies for a third round of administrative proceedings was not an abuse of discretion and should be affirmed. The court had ample justification for its findings of agency bias and procedural unfairness. Applicable precedents permit a trial court to withhold remand if an agency cannot be trusted to act fairly and expeditiously.

8. Other than their argument concerning the court's dismissal order, Claimants do not dispute that Plaintiffs have a right to study the skeleton if it is not Native American. If this Court concludes that NAGPRA does apply, the case should be remanded to the District Court for further consideration.

ARGUMENT

I. THE DISTRICT COURT CORRECTLY FOUND THAT PLAINTIFFS HAVE STANDING.

In 1997 the District Court rejected arguments that Plaintiffs lack standing to maintain this action. Bonnichsen, 969 F. Supp. at 632-37. Only Claimants challenge that ruling.

Standing exists when there is an injury, caused by government misconduct, and the injury can likely be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1991). Claimants do not dispute that the first two elements (injury and causation) are satisfied here. Plaintiffs are renowned scientists dedicated to studying the origins of humanity in the Americas. They made repeated requests to examine this extraordinary skeleton, and have a detailed study plan ready to be implemented when access is obtained. But for the agencies' intervention, they would have carried out their studies. See, e.g., Bonnichsen, 969 F. Supp. at 635. Access to the skeleton was denied solely because of the agencies' interpretations of NAGPRA and their commitment to the Coalition. COE 29,760; ER 9; SER 47.

The only question raised by Claimants is whether Plaintiffs' claims are sufficiently redressable for purposes of standing. They are. To establish redressability, a plaintiff need not show that it would ultimately prevail on the merits of its claim (as Plaintiffs eventually did here). See, e.g., Hall v. Norton, 266 F.3d 969, 976-77 (9th Cir. 2001); National Wildlife Federation v. Burford, 871 F.2d 849, 852 (9th Cir. 1989). Nor does a plaintiff have to show that a favorable decision will inevitably redress his injuries, but only that it is likely to redress them. See Beno v. Shalala, 30 F.3d 1057, 1065 (9th Cir. 1994).

The natural link between causation and a court's power to afford appropriate relief is usually strong enough to permit an "infer[ence] that correction of the defendant's improper conduct will relieve the injury caused thereby." Legal Aid Soc'y of Alameda County v. Brennan, 608 F.2d 1319, 1335 (9th Cir. 1979), cert. denied, 447 U.S. 921 (1980). Such an inference was clearly appropriate here, and Claimants have not cited any case to the contrary.

Claimants' arguments concerning "zone of interests" and NAGPRA are misguided. To benefit from that test, the party opposing standing must identify a discernable Congressional intent to limit actions to only a specific class of plaintiffs. National Wildlife Federation, 871 F.2d at 851-52. See also Clarke v. Securities Industry Ass'n, 479 U.S. 388, 399 (1987) (test applies to claims that are "so marginally related to or inconsistent with the purpose implicit in the statute that it cannot be reasonably assumed that Congress intended to permit the suit.") That is not the case here. NAGPRA provides that it may not be construed to "deny or otherwise affect access to any court" or "limit any procedural or substantive right which may otherwise be secured to individuals or Indian tribes or Native Hawaiian organizations." 25 U.S.C. §3009(3)&(4). In addition, actions alleging a violation may be brought by "any person" in a district court which may "issue such orders as may be necessary" to enforce the statute's provisions. 25 U.S.C. §3013. Such a grant is broad enough to encompass a claim for overenforcement of a statute as Plaintiffs alleged here and proved. Bennett v. Spear, 520 U.S. 154, 164-65 (1997) (statute authorizing suits by "any person" sufficient for claim of overenforcement).1

In addition to their APA and NAGPRA claims, Plaintiffs also asserted a claim under the Archaeological Resources Protection Act ("ARPA"), 16 U.S.C. §470aa et seq. Claimants argue that this claim was denied by the District Court, and is now barred since Plaintiffs did not cross-appeal. Even if it had been dismissed, standing is not to be measured by hindsight but by a plaintiff's prospects before a decision on the merits. See cases previously cited. Claimants' dismissal argument also ignores the fact that the District Court specifically held that ARPA applies here and that Plaintiffs have a right to study the skeleton under ARPA. Opinion at 66, 70-73; ER 206, 210-13. What the court dismissed was Plaintiffs' claim that the government improperly cared for the skeleton. Opinion at 65-66; ER 205-206. It strains logic and the court's opinion beyond the breaking point to suggest that dismissal of the curation claim also included dismissal of the claim for which relief was granted.

Furthermore, where procedural violations have impaired concrete interests, the normal standards for redressability and immediacy are relaxed. See, e.g., Lujan, 504 U.S. at 572; Cantrell v. City of Long Beach, 241 F.3d 674, 682 (9th Cir. 2001); Douglas County v. Babbitt, 48 F.3d 1495, 1501 n.6 (9th Cir. 1995). Here Plaintiffs have asserted (and prevailed on) claims involving procedural violations under the APA and the National Historic Preservation Act ("NHPA"), 16 U.S.C. §470 et seq., and they have a concrete interest in studying the Kennewick skeleton. That is sufficient to give them standing. It does not matter whether further government approvals or proceedings might be needed following a favorable decision on the procedural claims2. See Cantrell, 241 F.3d at 680-81; Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1094 (9th Cir. 1998), cert. denied, 528 U.S. 964 (1998); Seattle Audubon Soc'y v. Espy, 998 F.2d 699, 702 (9th Cir. 1993).

Claimants also neglect to mention that Plaintiffs asserted claims under the Declaratory Judgment Act, 28 U.S.C. §2201 et seq., the National Historic Preservation Act ("NHPA"), 16 U.S.C. §470 et seq., and the First and Fifth Amendments. Plaintiffs' standing with respect to those claims is unchallenged.

Dr. Chatters who recovered the skeleton for the Coroner was not a necessary party as one amici claims. Sherry Hutt Br. at 9. Excavators under an ARPA permit do not have exclusive rights to the items recovered. They belong to the United States and are available for study by all qualified professionals. 36 C.F.R. §79.10(a)&(b).3

II. THE SECRETARY'S NATIVE AMERICAN INTERPRETATION WAS CONTRARY TO THE STATUTE'S WORDS AND NOT ENTITLED TO DEFERENCE.

NAGPRA defines "Native American" as "of, or relating to, a tribe, people, or culture that is indigenous to the United States." 25 U.S.C. §3001(9) (emphasis added). The agencies improperly enlarged that definition to include all remains predating 1492 even if they have no known relationship to present-day American Indians.

DOI's interpretation was first expressed in an opinion letter that its Departmental Consulting Archaeologist, Dr. Francis McManamon, sent to the Corps on December 23, 1997.4,5 His interpretation was refined in the Barry Memorandum as meaning "pre-Columbian" remains and objects, and accepted in the Secretary's September 2000 determination. COE 23, 31, 35; ER 3, 11, 15. The District Court found that this interpretation was contrary to the words of the statute and therefore invalid. "Giving the 'plain language' of this provision its ordinary meaning, use of the words 'is' and 'relating' in the present tense requires a relationship to a presently existing tribe, people or culture." Opinion at 27; ER 167. The court also found that the record was insufficient to demonstrate that the Kennewick remains had the requisite relationship. Opinion at 31; ER 171.

Like the agencies, Claimants argue that Chevron requires deference to DOI's interpretation6. They are wrong. Chevron imposes a three step analysis, and DOI's interpretation fails each step of the analysis.

First, the statutory provision in question must be ambiguous. See, e.g. M-S-R Public Power Agency, 297 F.3d at 841; Arizona Cattle Grower's Ass'n, 273 F.3d at 1237. "The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent." Chevron, 467 U.S. at 843 n. 9. DOI admits that NAGPRA's definition of Native American is unambiguous. See DOI 10842; SER 1283. Consequently, DOI's interpretation is not entitled to any deference.

Second, agency interpretations receive Chevron deference only if Congress has expressly authorized them to make rules carrying the force of law. United States v. Mead Corp., 553 U.S. 218, 226-27 (2001); The Wilderness Society, 316 F.3d at 921. Here the Secretary can only issue regulations "to carry out this chapter." 25 U.S.C. §3011. That authorization is too narrow to permit Chevron deference for the interpretation involved here. See, e.g., Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 122 S.Ct. 1155, 1159-1160 (2002) (authority to issue regulations "necessary to carry out" statute not broad enough to support proposed rule); The Wilderness Society, 316 F.3d at 921. See also Food and Drug Administration v. Brown & Williamson Tobacco Corporation, 529 U.S. 120, 125-26 (2000).

Third, even where the first two steps are passed, Chevron deference is not automatic. An informal interpretative ruling is entitled to weight only to the extent of "the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade." General Electric Co. v. Gilbert, 429 U.S. 125, 141-142 (1976), reh. denied, 429 U.S. 1079 (1977). See also Reno v. Koray, 515 U.S. 50, 61 (1995). Interpretations advanced for the first time in litigation are due "almost no deference" or "near indifference." The Wilderness Society, 316 F.3d at 921; Mead, 553 U.S. at 228.

The interpretation here was not a product of formal rulemaking. It was developed in the context of a lawsuit for the purpose of supporting the agencies' litigation position, and lacks any power to persuade. 7 The reasoning evidenced in Dr. McManamon's opinion letter is superficial and selective. Among other things, no effort is made to deal with the critical terms "relating to" and "that is." He cites the statute's definition of Native Hawaiian without acknowledging its full significance,8 and he reaches a conclusion at odds with the express words of the statute.

The starting point for construction of any statute is its language. Ernest & Ernest v. Hochfelder, 425 U.S. 185, 197 (1976); TVA v. Hill, 437 U.S. 153, 173 (1980). Regardless of how adopted, agency interpretations that conflict with the plain language of a statute are invalid. Public Employees Retirement System, 492 U.S. at 171. Congress "means in a statute what it says there", and appropriate effect must be given to all words of a statute. In re Transcon Lines, 58 F.3d 1432, 1437 (9th Cir.1995), cert. denied, 516 U.S. 1146 (1996).

Here Dr. McManamon deliberately disregarded words used in the present tense ("relating" and "that is") and rewrote Congress' definition to give it a meaning that speaks in the past tense.9 Agencies cannot take such liberties. The tense of words used by Congress are important and must be given full effect. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 482-83 (1999); Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 115-16 (1983); Flowers v. Carville et al., 310 F.3d 1118, 1124 (9th Cir. 2002); Weyer v. Twentieth Century Fox Films Corp., 198 F.3d 1104, 1112 (9th Cir. 2000). An agency may not "improve legislation" by altering provisions chosen by Congress. Brungart v. Bell South Communications, 231 F.3d 731, 797 (11th Cir. 2000), cert. denied, 532 U.S. 1021 (2001).

According to Claimants, this is all irrelevant because Dr. McManamon was really interpreting the word "indigenous" not the term Native American. Br. at 28. That is not what Dr. McManamon said. He claimed to be interpreting the term "Native American." COE 10; SER 8. Moreover, Claimants miss the point -- regardless of how indigenous is defined,10 Congress said that it must be something that presently exists.

Agency interpretations cannot be accepted unless reasonable. See United States v. X-Citement Video, Inc., 513 U.S. 64, 69-70 (1994); Public Citizen v. United States Department of Justice, 491 U.S. 440, 453-55 (1989); Arizona Cattle Growers' Ass'n, 273 F.3d at 1236. Under Dr. McManamon's interpretation, all remains predating 1492 from individuals who "resided" in or "occupied" the area now encompassed by the United States are automatically subject to disposition under NAGPRA. 11 COE 10, 12; SER 8, 10. Such remains would include Vikings, people from prehistoric Mexico, and groups that became extinct before the ancestors of modern American Indians arrived in an area. There is no indication Congress intended NAGPRA to produce results of this kind.12 Interpretations that "create a rule out of harmony" with a statute are invalid. Pacific Gas and Electric Co. v. United States, 664 F.2d 1133, 1136 (9th Cir. 1981).

Claimants also argue that DOI's interpretation is consistent with Congress' decision in NAGPRA to use the words "Native American" rather than "American Indian". Br. at 22-23. However, "failed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute." Solid Waste Agency of Northern Cook County, 531 U.S. at 169-70. In any event, by using the words "relating" and "that is", Congress specified that remains and objects claimed under NAGPRA must relate to something that presently exists in the United States.

Interpreting the statute as written by Congress does not make the cultural affiliation process "superfluous." Br. at 27. Native American determinations and cultural affiliation determinations are two different tests, and they look for different things. The latter looks for a shared group identity with a specific tribe, while the former can be satisfied by a relationship with Indian people and culture generally.13 Demonstrating such a relationship may be difficult at times, but agencies are not free to rewrite statutes to avoid inconveniences. Ragsdale, 122 S.Ct. at 1159-1160.

Claimants argue that the court's ruling upsets the balance that Congress "placed in favor of returning remains to tribes." Br. at 39. They overreach. Congress did not draft NAGPRA to return all remains, but only those that are Native American. Congress defined that term carefully, and nothing in its definition indicates any intent to include remains from possibly extinct groups that are unrelated to present-day American Indians (or Native Hawaiians or Alaska Natives where appropriate).

The canons of construction for Indian and remedial legislation play no role here since they apply only in interpreting ambiguous statutory provisions. See, e.g., South Carolina v. Catawba Indian Tribe, 476 U.S. 498, 506 (1986); Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 107 (1944); Government of Guam, 179 F.3d at 638 (canon of construction for Indian legislation "does not permit reliance on ambiguities that do not exist" or permit "disregard of the clearly expressed intent of Congress"). None of the cases cited by Claimants or amici adopt a different rule. Moreover, it is arguable whether NAGPRA qualifies as Indian legislation. See, Williams v. Babbitt, 115 F.3d 657, 664-65 (9th Cir. 1997), cert. denied, 523 U.S. 1117 (1998) (refusing to construe a statute to give Alaska tribes a monopoly over reindeer ownership).

Claimants and amici cite various statements by members of Congress. Such statements are entitled to little weight. Multnomah Legal Services Workers Union v. Legal Services Corp., 936 F.2d 1547, 1555 (9th Cir. 1991). See also Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 396 (1951), reh. denied, 341 U.S. 956 (1951). Moreover, Claimants overlook those congressional statements showing a disinterest in applying NAGPRA to ancient remains that have no relationship to modern American Indians. See, e.g., statement of Representative Charles Bennett ("we as a nation should take care of" remains for which there are no modern descendants); statement of Senator Daniel Akaka (consideration should be given to the government's role as "the caretaker of peoples who are extinct."). House Committee on Interior and Insular Affairs, Hearings on H.R. 1381, H.R. 1646 and H.R. 5237, 101st Cong. (July 17, 1990) at 130,135. See also, Ryan Seidemann, "Congressional Intent: What Is The Purpose of NAGPRA", Mammoth Trumpet 18(3): 18-20 (June 2003).

Navajo Nation v. Department of Health & Human Services, 285 F.3d 864 (9th Cir. 2002), reh'g en banc granted, 307 F.3d 977 (2002) does not support Claimants' contentions, and under the order granting rehearing may not be cited.

III. THE COALITION WAS NOT A PROPER CLAIMANT.

Even if Kennewick Man were Native American, the Secretary's determination was still wrong because NAGPRA does not authorize dispositions to group claimants like the Coalition.14 The Secretary's only discussion of this critical issue was a perfunctory three-sentence paragraph stating that the statute and regulations do not address the issue. COE 26; ER 6. He should have looked closer. The plain language of the statute contradicts his conclusions about joint claims.

The statute uses the singular to specify that for cultural affiliation claims the recipient must be 'the Indian tribe...which has the closest cultural affiliation." 25 U.S.C. §3002(a)(2)(B) (emphasis added). Recipients on the basis of aboriginal occupation are likewise identified in the singular as "the Indian tribe that is recognized as aboriginally occupying the area." 25 U.S.C. §3002 (a)(2)(C)(1) (emphasis added). Other provisions of the statute also use the singular. See, e.g., 25 U.S.C. §3001(2) (definition of cultural affiliation). So do the Secretary's regulations. See 43 C.F.R. §10.14(c)(3)(C) (requirements for proof of cultural affiliation).

Joint claims like the one here are likewise inconsistent with the statute's definition of Indian tribe as "a tribe, band, nation or other organized group or community of Indians...which is recognized as eligible for the special programs

and services provided by the United States to Indians because of their status as Indians." 25 U.S.C. §3001(7). While some of the Coalition members are eligible for such programs and services, it is undisputed that the Coalition itself was not. According to Dr. McManamon, groups of Native Americans "who voluntarily associate together" are not proper claimants under NAGPRA. See "Implementing the Native American Graves Protection and Repatriation Act," 24 Ariz. St. L.J. 217, 223 (1992).

Agency constructions of a statute that disregard the words used by Congress must be rejected. See South Carolina v. Catawba Indian Tribe, 476 U.S. at 510; Montclair v. Ramsdell, 107 U.S. 147, 152 (1883); San Xavier Development Authority v. Charles, 237 F.3d 1149, 1153 (9th Cir. 2001) (Congress' definition of tribe is controlling).

In an effort to create an illusion of ambiguity where none exists, Claimants argue that Congress' use of the term "closest cultural affiliation" legitimizes joint claims since it "suggests a congressional recognition" of the possibility of cultural affiliation to multiple tribes. Br. at 56. In fact, however, it points to the opposite conclusion. Despite being aware that multiple claims might occur, Congress chose to specify that only one tribe could be the appropriate recipient. Nor does any in the Senate Report on NAGPRA demonstrate a Congressional intent to waive this requirement. While competing claimants are free to resolve disputes by agreements among themselves, they must still do so in the context of Congress' declaration that agency determinations must be in favor of the tribe with the closest cultural affiliation.

It proves nothing that joint claims are a "commonly accepted practice" by museums and federal agencies. Br. at 56-57. Repeated violations of the law do not make an unlawful practice lawful. See Baltimore & Ohio R. Co. v. Jackson, 353 U.S. 325, 330-331 (1957) (overruling administrative practice of 60 years duration); United States v. E.I. duPont deNemours & Co., 353 U.S. 586, 590 (1975) (40 years practice); Connecticut Light and Power Co. v. Federal Energy Regulatory Commission, 627 F.2d 467, 473 (D.C. Cir. 1980).

Whatever may be considered fair in other situations where at least one member of a coalition can independently satisfy the statutory requirements for a claim, that was not the case here. The Coalition's claim expressly stated that it was asserted "jointly" and superseded all prior separate claims. DOI 4109; ER 81. DOI's experts and staff made no effort to evaluate each member of the Coalition separately15, and the Secretary expressly rejected any need to do so. COE 26, 27; ER 6, 7. The administrative record contains numerous documents referring to the Coalition as the claimant here and the joint nature of its claim. See, e.g., DOI 1373, 3376, 3610.

Claimants now argue that their joint claim was appropriate because they are actually part of a single culture that the United States, not the tribes, "divided into separate regional tribal entities." Br. at 57. In fact, however, at the time of European contact the tribes consisted of politically autonomous villages that occupied separate areas distinct from those of other tribes.16 COE 2863, 2961; SER 93, 96. Coalition members speak Salish and Sahaptin languages which belong to separate language families17. Salish speaking tribes were considered "altogether distinct" from the Sahaptin tribes. 18 COE 2829; SER 89. Claimants believe that each tribe was separately created. DOI 7660; SER 818.

The Coalition's history demonstrates just how artificial and transitory it was. Originally it included the unrecognized Wanapum Band which claimed a personal interest in the skeleton. COE 4223, 4547; SER 128, 135. The Band participated in meetings with the government and other Coalition business. COE 4563, S-409; DOI 4993, 5001; SER 140, 426, 634, 638. Nonetheless, they are not part of Claimants' new coalition.

Claimants argue that joint claims help to avoid conflict and waste of judicial resources. Br. at 56. Even if true, that argument raises policy issues that are for Congress, not the courts, to decide See Williams v. Babbitt,115 F.3d at 664-65.

IV. THE SECRETARY'S CONCLUSIONS ON CULTURAL AFFILIATION WERE CONTRARY TO LAW AND THE EVIDENCE.

The District Court properly set aside the Secretary's cultural affiliation determination. Agency actions, findings or conclusions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law" are invalid. 5 U.S.C. §706(2)(A). Agency decisions must be set aside if not supported by the record as a whole or if a court must guess at the reasoning or theory used. See Bowen v. American Hosp. Ass'n, 476 U.S. 610, 627 (1986); Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947), reh. denied, 332 U.S. 747 (1947). Agencies must articulate a "rational connection between the facts found and the choice made." Burlington Truck Lines, Inc., 371 U.S. at 168. A failure to address "an important aspect of the problem" is by definition arbitrary and capricious. Motor Vehicle Manufacturers Ass'n. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43 (1983).

The Secretary's cultural affiliation determination met none of these tests. He did not articulate a cogent rationale for his conclusions. He failed to address or establish crucial factors specified in the statute. He did not explain his conclusions or how the evidence supported his conclusions. His conclusions were not supported by the record as a whole.

A. The Secretary Failed to Identify Kennewick Man's Group.

One requirement essential for cultural affiliation is proof of an "identifiable earlier group" to which the remains or objects belonged. 25 U.S.C. §3001(2). The Secretary's determination never identified the actual group to which Kennewick Man belonged. Instead it speaks in generalities such as "the group" or "the cultural group, represented by the Kennewick human remains." COE 26, 27; ER 6, 7. His experts could do no better. They merely asserted that Kennewick Man's group was part of either the "Windust Phase" or the "Early Cascade Phase." DOI 10054; SER 1152. The District Court properly set aside this half-hearted attempt at a finding.

First, the Secretary ignored evidence from his own experts that there were as many as 20 "bands" or groups in the region during the Windust and Early Cascade Phases. See DOI 10060, 10136; SER 1158, 1196. To say that Kennewick Man's group was one of them does not tell us which one it was.19 Agency decisions that overlook or fail to resolve key issues are invalid. See Motor Vehicle Manufacturers Ass'n, 463 U.S. at 43; Beno, 30 F.3d at 1075.

Second, the Secretary failed to specify which of the two archaeological Phases (Windust or Early Cascade) Kennewick Man supposedly belonged to. They are not the same. 20

Third, there was no credible evidence that Kennewick Man's group was part of either Phase. The projectile point in his hip does not prove what group he

belonged to since no one knows how or when it got there. DOI 8996; SER 885, 1640. Whether it is a Cascade Point as originally thought is open to question, and even if it is, Cascade Points have been found throughout the Pacific Northwest. DOI 10811; SER 1814b. In any event, projectile points do not distinguish between different biological or ethnic populations. COE 2796; DOI 10063; SER 73, 1161. It is equally speculative to assume that Kennewick Man was a resident of the area. People during Kennewick Man's time were highly mobile. DOI 9000, 10136; SER 889, 1196. Archaeological sites from his time are rare, and none is from the immediate Kennewick area. DOI 10053, 10056, 10133, 10172; SER 1151, 1154, 1193, 1200.

The doctrine that agencies can rely on the reasonable opinions of their experts has no application here. None of the Secretary's experts identified the actual group to which Kennewick Man belonged. They were not asked to do so, but instead were told to assume that Kennewick Man was part of "the ancient group" that likely resided in the region 9500 years ago. DOI 5256, 5276, 5288, 5381; SER 642, 647, 652, 659. See also DOI 6040; SER 694. To make such an assumption was pure speculation. Agency decisions must be based on rational and ample evidence. Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1462 (9th Cir. 1996); Northwest Motorcycle Ass'n v. United States Depart. of Agriculture, 18 F.3d 1468, 1471 (9th Cir. 1994).

B. No Shared Group Identity Was Shown Between Kennewick Man's Group and the Coalition.

The statute also requires proof of a shared group identity between the earlier group and the Coalition. 25 U.S.C. §3001(2). According to the Secretary, such a shared group identity could be inferred here because "...the geographic and oral tradition evidence establishes a reasonable link between these remains and the present-day Indian tribe claimants." COE 26; ER 6. That conclusion was fatally flawed.

The Secretary's first error was one of fundamental logic. Since he could not identify Kennewick Man's group, there was no reasoned starting point for establishing a shared group identity between that group and the Coalition. It is simply impossible to find a connection between two groups if one of them is unknown. Agency decisions must be based on plausible logic. Inland Empire Public Lands Council v. Glickman, 88 F.3d 697, 701 (9th Cir. 1996).

The Secretary also failed to define what the term "shared group identity" means. Neither the statute nor the regulations define the term, and the Secretary made no attempt to explain it.21 Agency decisions must explain the reasons for their conclusions. Louisiana-Pacific Corp., Western Division v. NLRB, 52 F.3d 255, 260 (9th Cir. 1995).

The Secretary also failed to explain what he meant by "geographic" evidence. This was no small oversight. DOI staff was not persuaded by geographic references in the Coalition's languages and oral traditions (DOI 10072, 10075-76; SER 1170, 1173-74), and rejected claims that all prior users of the Columbia Plateau were inevitably affiliated with the Coalition. DOI 10058; SER 1156. The Secretary made no attempt to deal with this evidence. Agency decisions must articulate a "rational connection between the facts found and the choice made." Burlington Truck Lines, 371 U.S. at 168; Arizona Cattle Growers' Ass'n, 273 F.3d at 1236.

Another flaw was the Secretary's overextension of the Coalition's oral traditions. Even if one assumes that those traditions are accurate and that they reflect long-standing ties to the region22, it still does not follow that they demonstrate cultural affiliation with Kennewick Man. Since they cannot be dated, they do not tell us how long the Coalition's members have resided in the area. DOI 10075, 10076; SER 1173, 1174. They make no mention of anyone who can be identified as Kennewick Man or his group. In short, they do not provide the rational basis needed to support the Secretary's determination. See e.g., Illinois Public Telecommunications Ass'n v. FCC, 117 F.3d 555, 564 (D.C. Cir. 1997), on reh., 123 F.3d 693 (1997), cert. denied, 523 U.S. 1046 (1998) ("The FCC's ipse dixit conclusion, coupled with its failure to respond to contrary arguments resting on solid data, epitomizes arbitrary and capricious decisionmaking"); Bicycle Trails Council of Marin, 82 F.3d at 1462.

The Secretary improperly shifted the burden of proof on cultural affiliation. His experts pointed to numerous unexplained gaps and discontinuities in the cultural record that make it impossible to trace the identity of the region's inhabitants over the last 9500 years. See e.g., DOI 10066-67; SER 1164-65 (mortuary practices); DOI 10171; SER 1199 (archaeological data). Another expert referred to changes in burial practices that "may reflect cultural discontinuity with preceding periods." DOI 07039; SER 717. The Secretary's response to this evidence was to assume that cultural affiliation exists unless proven otherwise. See COE 27-28; ER 7-8 (cultural discontinuities are not "inconsistent with a cultural group continuously existing in the region" but changing over time)23. Dr. McManamon was even more explicit stating that "absent evidence to the contrary, the claimants' submitted evidence is true." DOI 9525. Agencies may not shift the burden of proof on issues unless authorized by Congress. See Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 271 (1994).

The Secretary also failed to explain what he meant by the term "cultural continuity" and how it relates to "shared group identity" as specified by Congress. COE 28; ER 8. It apparently does not require any commonality in the nonmaterial aspects of culture such as language, religion and customs since the Secretary made no findings in that regard. The Secretary also felt free to disregard evidence of changes in projectile points, dwellings, and other aspects of material culture. See DOI 8717-18, 10060-65; SER 859-60, 1158-63. The Secretary's concept of "continuity" is apparently so flexible it does not even require a biological connection. See COE 27; ER 7 (reference to morphological differences).

In addition, the Secretary ignored all evidence from Plaintiffs contrary to the conclusions he wished to reach. Plaintiffs submitted affidavits from experts stating that the skeleton's discovery on land occupied by Coalition members thousands of years later may be a sheer coincidence that proves nothing. DOI 8977, 8993, 9000; SER 866, 882, 889, 1871, 1876. Other affidavits pointed out that if Kennewick Man or his group have living descendants (and it cannot be assumed that they do), those descendants could reside anywhere including outside this country. SER 1410, 1425. Likewise, Kennewick Man's language would be unrecognizable today. DOI 8993, 8997; SER 882, 886. It is impossible to know what his religious beliefs, customs and traditions were. DOI 08993; SER 882, 1641. If anything remains today of his culture and language, he would not be able to recognize it. DOI 9002; SER 891. For other examples of ignored evidence, see SER 1674-75, 1809-10. The Secretary was obligated to consider all contrary evidence. Universal Camera Corp, 340 U.S. at 488; National Wildlife Fed'n v. FERC, 801 F.2d 1505, 1512 (9th Cir. 1986).

What the Secretary did here, as elsewhere in his determination, was to substitute his tests for those specified by Congress so that he could reach a conclusion not permitted by the statute. He did not have that authority. See Sutton, 527 U.S. at 483-84; National Credit Union Administration v. First National Bank and Trust, et al., 522 U.S. 479, 500 (1998); Lechmere Inc. v. NLRB, 502 U.S. 527, 532 (1992).

C. The Secretary Did Not Establish that the Coalition is Descended from Kennewick Man's Group.

Under the regulations, a finding of cultural affiliation must establish that the claiming tribe was "identified from prehistoric or historic times as descending" from the earlier group. 43 C.F.R. §10.14(c)(3). The closest the Secretary came to this issue was a cryptic comment that the morphological differences between Kennewick Man and the Coalition's members might indicate either "a cultural discontinuity" or an undetermined amount of intermixing with other groups. COE 27; ER 7. He did not explain which of these possibilities he thought happened, or how the descent requirement can be resolved if the identity of the earlier group is unknown.

His experts were not asked to look for evidence of descent, and they reached no conclusions in that regard. DOI 5255-59, 5275-79, 5287-91, 5380-84; SER 641-45, 646-650, 651-655, 658-662. They did caution, however, that the answer was not clear. See DOI 10326; SER 1215 (Kennewick Man's group may have moved elsewhere or died out); 10692; SER 1268 (existing data insufficient to "provide direct evidence of biological continuity between Kennewick and modern American Indian Tribes").

The Coalition's experts did not fill the gap. Like the Secretary, they were unable to identify Kennewick Man's group. They spoke of continuity despite possible biological and linguistic change in the area (COE 2788; DOI 7619; SER 65, 789), and discounted the value of the data supporting their own conclusions. COE 2791-93; DOI 7648; SER 68-70, 813. They engaged in great leaps of imagination.24 DOI staff was not persuaded by any of these reports. DOI 10057-58, 10059, 10063, 10067, 10074-76; SER 1155-56, 1157, 1161, 1165, 1172-74. Even the Secretary dismissed the mortuary and linguistic evidence. COE 27; ER 7.

The Secretary makes no mention of Plaintiffs' evidence about the difficulties involved in demonstrating biological or cultural descent over prehistoric periods this long. See, e.g., COE 5945; SER 197 (few places can demonstrate physical and cultural continuity beyond 5000 years); COE 9409; SER 370 (no population on

earth "can confidently link its ancestry to skeletons 9000 years old"). Agencies

must consider all contrary evidence, and that consideration must be real, not feigned. Asarco, Inc. v. EPA, 616 F.2d 1153, 1162 (9th Cir. 1980).

Claimants cite the House Report on NAGPRA for the proposition that cultural affiliation should not be precluded "solely because of some gaps in the record." Br. at 41. However, both the House and Senate Reports speak of "reasonable" gaps. ER 41, 64. Here Claimants' prehistory cannot be traced further back than 4000 years ago even using speculative language reconstructions. DOI 10070; SER 1168. That leaves 5500 years unaccounted for. Such a span is an immense chasm, not a reasonable gap.

Under his own regulations, the Secretary was also required to show that Claimants were "identified" from prehistoric times as descending from Kennewick Man's group. 43 C.F.R. §10.14(c)(3). He made no attempt to do so, and did not even mention this requirement.25

The Secretary's failure to address these important descent issues was arbitrary and capricious. Motor Vehicle Manufacturers Ass'n, 463 U.S. at 43.

D. Claimants' Arguments About Burden of Proof Are Factually And Legally Incorrect.

Claimants try to divert attention from these defects by creating a phantom issue over burden or degree of proof. The District Court did not require proof to a "scientific certainty." Br. at 47. Those are Claimants' words, not the court's. Nor did the court try to resolve or weigh "conflicting" scientific evidence. Br. at 44, 47. It simply did what all good trial courts are supposed to do. It looked at the record as a whole to consider the evidence cited by the Secretary to support his conclusions as well as contrary parts of the record that detract from those conclusions. See Memorial, Inc. v. Harris, 655 F.2d 905, 912 (9th Cir. 1980).

Claimants' present arguments about preponderance of the evidence are not what they told the court. Amicus Hearing Br. at 18, 19 (appropriate test is preponderance of the evidence). Absent exceptional circumstances or other convincing explanations, arguments raised for the first time on appeal are barred. McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980), cert. denied, 450 U.S. 996 (1981); Rothman v. Hospital Serv., 510 F.2d 956, 960 (9th Cir. 1975). Here Claimants not only failed to argue this issue to the District Court, they asked it to adopt the approach they now challenge. Moreover, the regulations expressly require that cultural affiliation be established by a preponderance of the evidence. 43 C.F.R. §10.14(f). Trial courts do not err when they "view the evidence presented through the prism of the substantive evidentiary burden" to see if that burden was met. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55 (1986).

In any event, regardless of what the appropriate measure of proof was, the fact remains that the evidence was lacking to take the Secretary where he needed to go to meet the statute's requirements.26 His determination was also invalid for all the other reasons discussed herein. This Court can affirm on any basis established by the record. Golden Nugget, Inc. v. American Stock Exchange, Inc., 828 F.2d 586, 590 (9th Cir. 1987); Salmeron v. United States, 724 F.2d 1357, 1364 (9th Cir. 1983).

V. THE SECRETARY'S ABORIGINAL OCCUPATION DETERMINATION WAS CONTRARY TO LAW.

The Secretary also awarded the skeleton to the Coalition under NAGPRA's aboriginal occupation provision. COE 28; ER 8. The District Court set that attempt aside because there was no pertinent "final judgment" of the Indian Claims Commission or the Court of Claims as required by the statute. 25 U.S.C. §3002(a)(2)(C). Opinion at 64; ER 204. The agencies accept that ruling. Claimants do not, arguing that the court should have deferred to the Secretary. Br. at 50. They are wrong.

First, aboriginal occupation was not an issue properly before the Secretary. Starting in 1997, the agencies repeatedly assured Plaintiffs and the court that aboriginal occupation was not an issue here since there was no final judgment as the statute requires. COE 8244; DOI 1598, 3174, 10660; SER 308, 462, 555, 1239. These admissions were never withdrawn, and the Secretary's determination was a surprise to everyone but the Coalition which at the last minute apparently supplemented the administrative record on this issue. See Opinion at 59 n. 64; ER 199. The Secretary's action was even more remarkable because the Coalition's claim was based solely on cultural affiliation.27

Second, the words "final judgment" and "recognized" are not ambiguous. Scores of federal statutes as well as the rules of federal court procedure use the term "final judgment." See e.g., 12 U.S.C. §632, 15 U.S.C. §29, 16 U.S.C. §470ff, 17 U.S.C. §503, 28 U.S.C. §158, 41 U.S.C. §3118; Fed. R. Civ. P. 54. There is nothing confusing about this term which the courts use every day. It means precisely what it says - e.g., a court judgment that is final. It is also debatable whether the Secretary's determination can even be classified as an interpretation. The essence of his contention is not that the words "final judgment" are unclear, but that Congress really should have used the word "findings." That is nothing more than a policy position on what the law should be.

Third, even if the statue were ambiguous and the Secretary's determination an interpretation, it still would not be entitled to Chevron deference. NAGPRA does not give the Secretary authority to make rules of this magnitude, and his determination was not the result of formal rule making.28 Nor does it have any power to persuade.29

Fourth, the Secretary's attempt to substitute his words for those of Congress runs afoul of the settlement dismissing the Umatilla's 1966 ICC case. That settlement expressly provided that it could not be construed as an admission or precedent "in any other case or otherwise." DOI 223; SER 453d. It further stated that the dismissal order was not intended "as an affirmance of the findings or decisions" of the Commission. DOI 222; SER 453c. Such stipulations may not be disregarded. Devices for Medicine, Inc. v. Boehl, 822 F.2d 1062, 1065 (Fed. Cir. 1987). See also Washington County v. Gunther, 452 U.S. 161, 183 (1981); U.S. v. Oregon, 913 F.2d 576, 580 (9th Cir. 1990), cert. denied, 501 U.S. 50 (1991).

Fifth, there were no findings in the Umatilla's 1966 ICC case recognizing them or any other tribe as having aboriginal title to the skeleton's discovery site. On the contrary, the area was contested and used by many different tribes, including the Northern Piutes and possibly other groups who were not members of the Coalition. COE 2916.

Contrary to Claimants' arguments, it is not "unnecessary and illogical" to give effect to the words of the statute as written by Congress. Br. at 49. If Congress had wanted to permit "aboriginal joint occupancy" claims in cases such as this (Br. at 49), it could have done so. Instead it deliberately choose to use the terms "final judgment" and "Indian tribe" (singular tense). Agencies are not free to rewrite the words of a statute. See Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 472 (2001); Brungart, 231 F.3d at 797.

VI. THE AGENCIES VIOLATED APA AND DUE PROCESS GUARANTEES.

Administrative actions and decisions that are arbitrary and capricious, contrary to law or otherwise unfair violate the APA and possibly due process protections. See Portland Audubon Society v. Endangered Species Committee, 984 F.2d 1534, 1537 n.4 (9th Cir. 1993); Antoniu v. SEC, 877 F.2d 721, 724-25 (8th Cir. 1989), cert. denied, 494 U.S. 1004 (1989). NAGPRA is not exempt from APA and due process protections. See 25 U.S.C. §3009(4) (statute not intended to "limit any procedural or substantive right").

Claimants mischaracterize the District Court's APA ruling. Even though it could have (see subsection F below), the court did not apply the APA's ban on ex parte contacts to the secret communications between the agencies and the Coalition. The court APA's ruling was based instead on the agencies' failure to act as "fair and neutral decision makers." Opinion at 23, 24; ER 164. The secret communications were found to be wrongful not because they were ex parte contacts, but because they were part of a process that denied Plaintiffs a fair hearing. Opinion at 23; ER 163.

The APA and due process protections violated here include the following:

A. The Agencies Were Biased.

Parties to administrative proceedings are entitled to absolute neutrality by the decisionmakers. Gibson v. Berryhill, 411 U.S. 564, 579 (1973); Throckmorton v. NTSB, 963 F.2d 441, 445 (D.C. Cir. 1992). Bias did not have to be inferred here. It was obvious and pervasive.

The Corps viewed itself as having a partnership with the tribes (COE 656-57; SER 37-38) and promised to "do what the tribes decide to do with the remains." COE 7905; SER 298. DOI spoke to Coalition representatives about finding a "right answer" that would justify terminating study of the skeleton. COE 5130; SER 161. DOI saw this case as providing an opportunity to promote its preferred view of how the Americas were populated. DOI 6550-51; SER 701-702. Coalition help was sought in opposing Plaintiffs' study request (COE 8267-68; SER 312-13), and views were exchanged on litigation strategy against Plaintiffs. COE 8251, 8597-98, 8686; SER 310, 316-17, 322. Tribal members were given special access to the skeleton and DOI's restricted website. COE 6843b; DOI 5001; SER 240, 638. The Coalition was allowed to dictate where the skeleton was stored (COE 8260; SER 311, 1496), and what studies could be made of the discovery site. COE S-486-87; DOI 2650; SER 430-31, 531. Plaintiffs were denied access to the skeleton "because of the district's commitment to the tribal coalition." COE 760; SER 47.

The agencies' opposition to Plaintiffs was blatant and unremitting. Plaintiffs were said to be "unquestionably biased". COE 7714; SER 293. Their proposed studies were attacked as unscientific, irrelevant, excessive and needlessly destructive (COE 7711-16; SER 290-95), even though some were later conceded to be necessary. Important details about Plaintiffs' study plan were misrepresented. COE 7715, 7982; SER 294, 305 (characterizing Plaintiffs' request for 2 grams of

bone for DNA testing as four to six grams).30 Plaintiffs' studies and theories were described as "just another way to savage Indian heritage." SER 1835. When Plaintiffs visited the skeleton's repository to view the photographic record, information was withheld about the record's contents. SER 1826-27. One Plaintiff was likened to a "paleocowboy." SER 1859.

B. The Agencies' Information Sharing Was One-Sided.

At least 18 meetings and telephone conferences were held between the agencies and the tribes, and correspondence was frequent. SER 1715-20.31 Among other things, information was shared about DOI's studies of the skeleton and its cultural affiliation studies. See DOI 4252-56, 4282-83, 6746, 6987; SER 582-86, 587-88, 703, 710. The agencies gave feedback to the Coalition on its affiliation materials, and coached it on issues that needed elaboration. COE 2812; DOI 8715, 8718, 9101; SER 83, 857, 860, 990. Tribal input was solicited on the Corps' plans to bury the discovery site and on development of DOI's cultural affiliation studies. COE S-903; DOI 4992-96, 5002-03; SER 445, 633-37, 639-40. The tribes were apparently allowed to secretly supplement the record on the aboriginal land issue. Opinion at 59 n, 64; ER 199.

Plaintiffs' request for information about the issues being considered by the agencies was rejected as contrary to the rules of administrative practice. COE 7235-36; SER 268-69. Other requests met with similar responses or silence. COE 7083, COE S-399, 401, 402; SER 265, 422, 424, 425. Plaintiffs were not given copies of DOI's cultural affiliation and skeletal study reports until they were ready for public release.32 Plaintiffs were not notified of the site burial project until after it had been finalized, and then were given only six days to respond (over the

Christmas holidays).33 COE 6462; SER 222. Plaintiffs needed a court order just to obtain basic information about the skeleton's condition. SER 1494. What little information that was shared with Plaintiffs either related to details rather than substance or came too late to affect the outcome of the decisions being made.34

Such disparate treatment of parties is inconsistent with the APA and due process. See Ohio Bell Tel. Co. v. Public Utilities Commission of Ohio, 301 U.S. 292, 300 (1937); Greene v. Babbitt, 64 F.3d 1266, 1274-75 (9th Cir. 1995); Ober v. EPA (Ober I), 84 F.3d 304, 314-15 (9th Cir. 1996).

C. The Coalition Received Other Preferential Treatment.

The agencies allowed Coalition representatives to survey the discovery site (COE S-914; SER 451), to recover additional bone fragments from the site (COE 6837, 6838; SER 237, 238), and help inspect the skeleton. COE 6835, 6846; SER 236, 244. In contrast, Plaintiffs were excluded from access to the skeleton, except when ordered by the court.

Because of their commitment to the Coalition, the agencies buried the discovery site to prevent recovery of any information it might contain. See Opinion at 10; ER 150 ("the Corps' primary objective in covering the site was to prevent additional remains or artifacts from being discovered. . ."). See also id. at 67; ER 207. Because of Coalition objections, excavations at the site were prohibited and many surface-type procedures were drastically curtailed. COE S-486-87; DOI 2650; SER 430-31, 531. After burying the site, the Corps congratulated itself on a "good job" and predicted that "THE DIN WILL DIE OUT VERY QUICKLY." COE S-273; SER 407.

D. The Secretary Did Not Consider Plaintiffs' Evidence.

It is a bedrock principle that agencies must consider all evidence, including contrary evidence, and explain clearly how their decisions are reached. See Burlington Truck Lines, 371 U.S. at 168; Universal Camera Corp, 340 U.S. at 488; Illinois Public Telecommunications Ass'n, 117 F.3d at 564.

There is no indication here that the Secretary gave any consideration to the evidence submitted by Plaintiffs. Neither his determination nor the Barry Memorandum mentions any of that information. The Human Culture in the Southeastern Plateau memorandum merely states that "[s]ome information submitted by the Bonnichsen plaintiffs" was received and "considered." DOI 10053; SER 1151. No attempt was made to analyze what that information might mean. Little of Plaintiffs' information was even cited.35 Conclusionary statements such as those in the staff memorandum or the Secretary's comment that "all lines of evidence were deemed equally important and all were accorded equivalent weight" (COE 26; ER 6) are not sufficient to show that an agency met its

obligations. See Beno, 30 F.3d at 1075; Getty v. Federal Savings & Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C. Cir. 1986); Jordan v. Califano, 582 F.2d 1333, 1335-36 (4th Cir. 1978).

E. The Agencies Prejudged Issues.

Agency decisionmakers may not prejudge contested issues. See Antoniu, 877 F.2d at 724; Cinderella Career and Finishing Schools, Inc. v. FTC, 425 F.2d 583, 590 (D.C. Cir. 1970). Here the Corps peremptorily concluded that Kennewick Man was Native American and culturally affiliated to the Coalition without bothering to gather relevant evidence. COE 9270; SER 344. The agencies had preconceived conclusions about what "ancient group" Kennewick Man belonged to. DOI 5256, 5276; SER 642, 647. They also had preconceived conclusions about where he was born and lived. DOI 6040; SER 694. They remained wedded to the Coalition's aboriginal occupation claim regardless of what the facts were. COE 28, 7658, 9276; ER 8; SER 285, 346. They buried the discovery site without bothering to see what it contains. COE 5678; SER 170.

F. There Are No Excuses For the Agencies' Violations.

The agencies' procedural violations cannot be excused on the grounds they were only engaging in "informal fact-finding." Br. at 51-52. Informal procedures are appropriate only for agency decisions not involving the resolution of factual disputes. United States v. Florida East Coast Ry. Co., 410 U.S. 224, 246 (1973). If an agency is weighing evidence, making determinations from contested facts and deciding the rights of parties, the process is quasi-judicial and procedural protections are required. Morgan v. United States, 298 U.S. 468, 480 (1936); Marathon Oil v. EPA, 564 F.2d 1253, 1261 (9th Cir. 1977).

The fact that a statute does not use the terms "formal adjudication" or "administrative hearing" is not determinative. As this Court has stated, "the crucial question is not whether particular talismatic language was used but whether the proceedings under review fall within that category of quasi-judicial proceedings deserving of special procedural protections." Marathon Oil Co., 564 F.2d at 1264. Any doubt that the proceedings here were quasi-judicial should have been removed by the District Court's 1997 remand. The agencies were specifically directed to "fully reopen this matter", to "gather additional evidence" and ultimately "reach a decision that is based upon all of the evidence." Bonnichsen, 969 F. Supp. at 645. This directive was issued in the context of a dispute involving contested facts whose outcome would directly impact the interests of specific parties. Nothing could be more quasi-judicial.36

Even when a formal hearing before an administrative law judge is not required, agency procedures must be fair. United States Lines, Inc. v. Federal Maritime Commission, 584 F.2d 519, 526, 537 (D.C. Cir. 1978). Requisite procedural protections include disclosure of opposing evidence, a determination on the record, a statement of reasons and evidence relied upon, and an impartial decisionmaker. Goldberg v. Kelly, 397 U.S. 254, 262-63 (1970). They also include avoidance of ex parte contacts by decisionmakers. United States Lines Inc., 584 F.2d at 540-41; Sierra Club v. Costle, 657 F.2d 298, 400 (D.C. Cir. 1981). 37

The fact that NAGPRA requires agencies to consult with potentially interested tribes does not excuse them from compliance with APA and due process requirements.38 Agencies can consult with tribes and still be fair to other interested parties. Nothing in NAGPRA requires an agency to reach premature conclusions, to side with one party to a dispute, to withhold from one party information provided to the other party, or to refuse to inform a party of the issues being considered. Likewise, nothing in the statute or regulations lessens an agency's obligation to be fair and unbiased.

Claimants cite Echazabal v. Chevron USA, Inc., 213 F.3d 1098 (9th Cir. 2000). That decision has been reversed. 226 F.3d 1063 (2000). Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978) merely held that in the absence of special circumstances agency rulemaking proceedings do not have to exceed the procedural protections required by the APA.

VII. ANOTHER REMAND WAS NOT REQUIRED HERE.

Claimants argue that even if the agencies did violate the law, the District Court's only option was to remand the case for a third round of administrative proceedings. Br. at 14, 59. The court's authority was not so limited.

This Circuit has repeatedly held that courts need not remand cases where the agency cannot be trusted to decide a matter fairly and appropriately. "[I]n an appropriate case, we may order the substantive relief sought, even if doing so supplants the decision of the agency." Guerrero v. Stone, 970 F.2d 626, 636 (9th Cir. 1992). See also Alverado Community Hosp. v. Shalala, 155 F.3d 1115 (9th Cir. 1998), amd. 166 F.3d 950 (1999)(ordering relief rather than remand to avoid "further recondite litigation"); Gete v. INS, 121 F.3d 1285, 1292 (9th Cir. 1997) (courts should not permit "free-wheeling' agencies [to mete] out their own brand of justice"); Sierra Pacific Indus., 866 F.2d at 1111 (court reviewing agency action may "'adjust its relief to the exigencies of the case'"); Stone v. Huckler, 761 F.2d 530, 533 (9th Cir. 1985) (remand not required where it would "only prolong an already lengthy process").

A choice of remedial relief tailored to remedy specific wrongdoing is reviewed for an abuse of discretion. See United States v. Washington, 157 F.3d at 642; Sierra Pacific Indus., 866 F.2d at 1111. To establish an abuse of discretion, Claimants must show that the District Court committed either an error of law or a clearly erroneous factual error relating to the choice of relief. They have not done so.

The court removed the case from the agencies because it had lost faith that they would act fairly and appropriately if given a third chance to do what they should have done properly the first time. "This is not the usual case. Here, the record establishes that the decision makers did not deal with the issues and the interested parties in a fair and neutral manner. Defendants' procedures, actions, and decisions have consistently indicated a desire to reach a particular result." Opinion at 69; ER 209. As discussed in Section VI, the court had ample reason to reach that conclusion. The agencies consistently sided with the Coalition against Plaintiffs, prejudged issues, and refused to give Plaintiffs a fair opportunity to contest the evidence and issues being considered. They remained defiant to the end, refusing to concede that they did anything wrong.39

Given the agencies' bias and conduct, the court concluded that another remand was likely to be futile. Opinion at 70; ER 210. In its 1997 remand, the court instructed the Corps (and by later extension DOI) "to fully reopen this matter." Bonnichsen, 969 F. Supp. at 645. Instead of doing so, the agencies remained wedded to the same preconceived notions about the result they wanted to reach. The agencies were also instructed to provide a clear statement of the reasons for any decisions reached. Id. at 645. Instead of doing so, the Secretary refused to articulate the evidence he was relying upon and made no effort to link the evidence to the conclusions reached.

The 1997 remand instructed the agencies to consider all of the relevant evidence. Id at 645. Plaintiffs submitted stacks of letters, articles, affidavits and other documentation to the agencies, either directly or through court filings, but these materials were ignored. The Secretary's determination cites only DOI's reports, and they refer to few of plaintiffs' submissions. The District Court also warned the agencies that the skeleton's age and the projectile point in its hip do not

prove that Kennewick Man was related to modern Native Americans. Id. at 652 ns. 24 and 26. The agencies ignored that warning. Despite the court's instruction to give "more serious consideration" to Plaintiffs' claim of a constitutional right to study the skeleton (id. at 648), that issue was ignored until the eve of the Secretary's determination. COE 2767; SER 51. Even then, the agencies merely reiterated their prior analysis. As in Food Marketing Institute v. ICC, 587 F.2d 1285, 1290 (D.C. Cir. 1978), the agencies' response to the 1997 remand was " a barren exercise in supplying reasons to support a pre-ordained result."

Other experiences with the agencies were equally frustrating. Court intervention was needed time and time again. As the court noted on one occasion: "Though the court has sought to avoid micro-management of the government's decision-making process, court intervention has been needed to keep the process moving at all." SER 1634. The court had to intervene to compel an accurate inventory of the skeleton, to compel release of documents relating to its condition and to compel selection of a safer repository. SER 1493, 1494, 1500. But for a court imposed deadline, we might still be waiting for a final agency decision: "Plaintiffs are entitled to a timely decision, and it does not appear that one will be forthcoming without a court-imposed deadline." SER 1618.

When it suited their purposes, the agencies simply ignored court directives. In 1998 the court cautioned the agencies to be less adversarial in their proceedings and to engage in a more open exchange of information. SER 1497, 1498. Despite this advice, they refused to tell Plaintiffs anything about the issues they were considering. Plaintiffs even had to get a court order to gain access to CT scan data of the skeleton after the administrative record closed. SER 1652.

The agencies were often less than candid with the court. They claimed that DNA tests were needed for cultural affiliation purposes, while privately expressing doubts about such tests. DOI 08351; SER 844. They claimed that one scientist had "significant" test results when they knew he did not. SER 1457, 1472. They assured the court that the skeleton was safe even though their own expert recommended moving it to a more suitable repository. COE 6286, 6849; SER 208, 247. They discussed whether various tests would help buy time and persuade the Magistrate Judge that they were "moving in his direction." DOI 6551; SER 702. The agencies made admissions and then acted as if those admissions had not been made. See Section V above.

Without telling the court, they allowed the tribes to have secret ceremonies with the skeleton. COE 6843b; SER 240. They promised to begin collecting the administrative record in 1999 so that it would be complete when the final decisions were made. SER 1612. That promise was not kept, and the administrative record they eventually produced omits relevant documents. See SER 1836-1841. See also Opinion at 10; ER 150 (record documents only part of the decisionmaking process for burial of the site). Expert reports were altered at the direction of the agencies. COE 4660; S-489; DOI 6472, 7588; SER 145, 433, 700, 763, 1858.

According to Claimants, court imposed relief should be reserved for only those situations where the agency abuse goes on for decades. Br. at 61-62. While they may be content to wait that long, Plaintiffs cannot afford to do so. Denial of access to this important skeleton is affecting Plaintiffs' ability to teach, author papers, obtain research grants and develop new theories about the peopling of the Americas. SER 1543-44, 1547-48, 1555-56, 1558, 1566-67, 1570, 1571-72, 1583, 1861, 1863. Two Plaintiffs have already retired from active teaching, and others are fast approaching retirement age. SER 1862. While they wait, time is running out.40

Regardless of the length of time involved, courts have authority to intervene and order relief whenever necessary to protect a party from further agency abuse.

"The import of these cases is that when agency delays or violations of procedural requirements are so extreme that the court has no confidence in the agency's ability to decide the matter expeditiously and fairly, it is not obligated to remand. Rather than subjecting the party challenging the agency action to further abuse, it may put an end to the matter by using its equitable powers to fashion an appropriate remedy." Greene v. Babbitt, 943 F. Supp. 1278, 1288 (W.D. Wash. 1996).

That is the situation here. For five years, the District Court watched the agencies drag their feet, offer one excuse after another, side with one party to the dispute, manipulate the record and predetermine the ultimate outcome of their proceedings. It sat through seven hearings and read more than 40 reports and 30 memoranda from the parties and amici. Before reaching its decision it took almost 14 months to review those documents and the 22,000 page administrative record. Its judgment was well founded and should not be disturbed.

VIII. THE DISTRICT COURT'S STUDY ORDER SHOULD BE AFFIRMED.

Claimants assert that the District Court's order authorizing study of the skeleton was improper because Plaintiffs' study claim under ARPA was supposedly dismissed and NAGPRA does not authorize study of new discoveries. Br. at 11, 18. Claimants' first point lacks merit since it cannot be reconciled with the relief specifically granted by the court. See Section I above. The second point is moot if this Court agrees that the skeleton is not Native American and consequently is not subject to NAGPRA. If NAGPRA does not apply, its provisions are irrelevant to the issues before the Court.

Likewise, there is no issue here about the substantive merits of the District Court's rulings on study rights under ARPA. Claimants have not challenged its ruling that ARPA is the controlling statute if NAGPRA does not apply. Nor have they challenged its ruling that in the absence of NAGPRA Plaintiffs have a right under ARPA to study the Kennewick skeleton.41

Plaintiff's study rights, whether under ARPA or otherwise, will only become an issue if this Court concludes that the skeleton is Native American. In such an event, it would be necessary to consider whether Plaintiffs still have a right to study it. Relevant questions needing consideration would include: (a) to what extent does NAGPRA supercede ARPA; (b) does NAGPRA prohibit research oriented study of new discoveries;42 (c) do Plaintiffs have a First Amendment right to study this skeleton;43 (d) does it make any difference if the skeleton cannot be culturally affiliated to any existing tribe? Claimants have not addressed these issues, but merely state that Plaintiffs "have no legal right to study these remains." Br. at 14. If further proceedings do become necessary, the most appropriate course would be to remand to the District Court for proper development of the relevant issues.

A remand back to the agencies would not be appropriate. They cannot be trusted to resolve the matter fairly, expeditiously and in accordance with the law. Over three years ago, Plaintiffs asked the agencies to answer whether they would allow study of the skeleton if: (i) it is not Native American; (ii) it is Native American but cannot be culturally affiliated; (iii) it is Native American and can be culturally affiliated. DOI 4682; SER 610. They never answered except to say no to the last question, and even then it took them a year to respond. COE 29; ER 9. A remand back to the agencies would only result in more protracted delays, evasions and obstructions.44

CONCLUSION

The District Court carefully considered all of the issues and evidence in this case, and reached a decision in accordance with the law and relevant precedents.

That decision should be affirmed. Administrative agencies that deliberately exceed their authority are not entitled to deference or endless chances to repeat their misconduct. "[S]uch administrative hubris [should] be reined in, and * * * the task of improving the basic provisions of the statute be left to the same body that wrote them in the first place." Brungart, 231 F.3d at 797.

RESPECTFULLY SUBMITTED this ___ day of May 2003.

Alan L. Schneider, OSB No. 68147
Telephone (503) 274-8444

BARRAN LIEBMAN LLP

By:
Paula A. Barran, OSB No. 80397
Telephone (503) 228-0500

Attorneys for Plaintiffs-Appellees

1 Claimants ignore this decision, and rely instead on Indrago v. United States Army, 18 F. Supp. 2d 25 (D.D.C. 1998), which also did not cite Bennett v. Spear. That case is readily distinguishable from this lawsuit. The plaintiffs there were not injured by denial of their repatriation claim since they were not qualified claimants. They made no claim of overenforcement of the law as Plaintiffs do here, nor did they allege procedural injuries as Plaintiffs do. Unlike that case, Plaintiffs here are not demanding repatriation of the remains, but rather seek to prevent an unlawful repatriation. back

2 Here the only reason given for denial of Plaintiffs' study request was the assertion that such study would be contrary to NAGPRA. Absent that excuse, they would have been allowed to study it. Opinion at 70, 72 n. 74; ER 210, 212. No permits are needed here. See footnote 44 infra. back

3 Dr. Chatters will not be excluded from study of the skeleton since he is part of Plaintiffs' study team. SER 1500, 1579. back

4 He stated that Native American means "human remains and cultural items that resided within the area now encompassed by the United States prior to the historically documented arrival of European explorers, irrespective of when a particular group may have begun to reside in this area, and, irrespective of whether some or all of these groups were or were not culturally affiliated or biologically related to present-day Indian Tribes." COE 10; SER 8. back

5 Prior agency practices were inconsistent. For example, six months earlier, in June 1997 government attorneys indicated that chronological age alone was not sufficient to make something Native American. SER 1470-71. back

6 The agencies, however, do not contest the court's ruling that the evidence failed to prove a relationship between the skeleton and a present-day tribe, people or culture. See companion appeal 02-35994. back

7 Claimants argue that Chevron style deference is warranted here because DOI formally adopted regulations omitting the words "that is" from the definition of Native American. Br. at 21. However, Dr. McManamon did not cite this deletion as a reason for his interpretation. Nor is there any evidence that it was intended to affect the meaning of the term Native American. See 43 C.F.R. §10.1 (b)(2) (the regulations apply to remains and objects "which are indigenous to Alaska, Hawaii, and the continental United States") (emphasis added). Moreover, agencies have no authority to ignore or change the words of a statute. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 113 (2001); Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 172-73 (2001); M-S-R Public Power Agency, 297 F.3d at 844; Government of Guam ex rel. Guam Econ. Dev. Auth. v. United States, 179 F.3d 630, 634 (9th Cir. 1999), cert. denied, 529 U.S. 1017 (2000). back

8 Congress' use of a fixed date (1778) in this definition clearly demonstrates that it knows how to word an age dependent test when it wants one. 25 U.S.C. §3001(10). back

9 Both Claimants and the agencies concede that this was done intentionally. See Br. at 21; Appellants' Opening Brief (companion appeal 02-35994) at 45. back

10 The agencies do not claim that the word "indigenous" is ambiguous. See companion appeal, Appellant's Opening Br. at 29, 30. Accordingly, even if they were interpreting that word, their interpretation would not qualify for deference. back

11 Dr. McManamon never explained what he meant by "resided" or "occupied". Most dictionary definitions include mere living in an area for some time. See Webster's New Collegiate Dictionary (1981), definitions of "reside" and "residence". back

12 If classified as Native American, such unrelated remains could be claimed under the aboriginal occupation clause, 25 U.S.C. §3002(a)(2)(C), or disposed of under regulations adopted pursuant to 25 U.S.C. §3002(b). back

13 Claimants inaccurately characterize the District Court's decision when they say it required proof of a relationship to a specific tribe. Br. at 27. The court's ruling was not so limited. See Opinion at 27, 30, 31; ER 167, 170, 171. back

14 This defect applies to the Secretary's rulings on both cultural affiliation and aboriginal occupation. Both treated the Coalition as one claimant. COE 25, 26, 28; ER 5, 6, 8. back

15 Nor did the materials submitted by the Coalition. See, e.g., COE 2804; DOI 7650; SER 81, 815. back

16 Some of these lands were later the subject of exclusive occupation claims. See COE 2826 (Yakima), 2873 (Umatilla); SER 86, 94. back

17 Internal differences within each language family can be significant. The Walla Walla and Umatilla tribes could not understand the Cayuse language and vice versa. Nez Perce diverged from other Sahaptin languages possibly 2000 years ago, and is only partially intelligible to other tribes. COE 2875; DOI 10323. SER 95, 1214. back

18 Salish speaking groups objected to consolidation with Sahaptin speaking tribes on the Yakima reservation, and were transferred to the Colville reservation. COE 2860-61; SER 90-91. back

19 There is no evidence that these groups were culturally identical and thus constituted a single group, nor did the Secretary's experts claim that they were. The terms "Windust Phase" and "Early Cascade Phase" do not describe any specific group of people. They are merely labels referring to a sparse archaeological record that spans a vast geographic area (i.e., the entire Columbia River Plateau) and a huge period of time (6500 years). DOI 10133, 10228; SER 1193, 1202. No known preliterate cultural group has survived intact and unaltered over a span of 6500 years. Language, traditions and customs inevitably change over time. DOI 08988, 8997; SER 877, 886, 1871-72. Populations would have expanded, contracted and shifted as migrations in and out of the region occurred. DOI 10059, 10172; SER 1157, 1200, 1871-72. To call such an ever-changing assortment of people an "identifiable earlier group" would make the term meaningless. back

20 Kennewick Man lived during or close to the transition from the Windust Phase to the Early Cascade Phase. DOI 10133; SER 1193. There are various differences in the material culture of these two Phases. DOI 10135; SER 1195. The significance of such differences is not clear. DOI 7039; SER 717. Some scholars believe that they reflect population replacements, while other scholars disagree. DOI 10063, 10127-30; SER 1161, 1187-90. back

21 For purposes of its analysis of the evidence, the District Court interpreted the term as requiring consideration of a number of factors, including "at least some common elements of language, religion, customs, traditions, morals, arts, cuisine, and other cultural features." Opinion at 44 (emphasis in original); ER 184. Such an interpretation is reasonable. While scholars might disagree on the precise components of culture, no one disputes the importance of ideological and symbolic elements like those listed by the court. DOI 8992,10309; SER 881, 1212, 1641. back

22 There are reasons to question their reliability. See Opinion at 52; ER 192. Nothing in NAGPRA exempts oral tradition from the normal evidentiary tests of reliability. Oral traditions are unstable by nature, and seldom depict accurately events that occurred thousands of years ago. DOI 8975-76, 8986; SER 864-65, 875. As this Court noted in Cree v. Flores, 157 F.3d 762, 773 (9th Cir. 1998), it is one thing to use oral traditions to establish tribal understandings of treaty provisions, it is much less certain to use them to interpret data (i.e., to prove what actually happened in the past). back

23 The Secretary made no attempt to explain how such changes would be consistent with preserving a shared group identity. back

24 Sprague, for example, cites Marmes Rock Shelter and Rabbit Island as proof that mortuary practices establish continuity between the Coalition and Kennewick Man. DOI 7650; SER 815. The early remains from Marmes Rock Shelter, however, were cremations and not in-ground burials. DOI 10066; SER 1164. The burials at Rabbit Island are no older than 1000 B.C. DOI 7643; SER 808. back

25 Claimants' oral traditions are not evidence of such an identification since no one knows when they originated and they make no reference to Kennewick Man's group (whatever it was). back

26 Claimants argue that cultural affiliation only requires a "plausible connection." Br. at 41. That is not the law. They must prove all of the elements required by the statute. 43 C.F.R. §10.14(c). back

27 The Umatillas originally asserted an aboriginal occupation claim, but their claim was superseded by the Coalition's joint cultural affiliation claim. COE 9316-17; DOI 4109; SER 351-52, 579. Under the statute, aboriginal occupation claims cannot be asserted for objects that are culturally affiliated. 25 U.S.C. §3001(a)(2)(C) ("if the cultural affiliation of the objects cannot be reasonably ascertained"). back

28 The Secretary's formal regulations merely adopted the words of the statute without substantive change. 43 C.F.R. §10.6(a)(2)(iii). back

29 Courts need no guidance from the Secretary on how to apply terms relating to their proceedings. back

30 Eventually, the agencies used more than ten times that amount in their studies. COE 236-38, 7982; DOI 4936-38; SER 28-30, 626-28. back

31 None of these discussions were transcribed, and outlines exist for only a few. back

32 The Coalition received preliminary drafts of the cultural affiliation reports eight months earlier. DOI 6746, 6987; SER 703, 710. back

33 The failure to consult with Plaintiffs was found to be a violation of NHPA. Opinion at 67; ER 207. Claimants and the agencies do not appeal that ruling, or the court's finding that the Corps also violated NHPA by failing to ascertain the site's characteristics and contents, by failing to evaluate the project's potential adverse effects, by failing to minimize or mitigate those adverse effects, and by failing to consider less destructive alternatives. Opinion at 67-68; ER 207-208. back

34 Claimants incorrectly state that DOI informed Plaintiffs of "what evidence was to be considered, the nature of the determination, and when the final decision would be issued." Br. at 54. Plaintiffs were only told what physical examinations and studies would be made of the skeleton. They were not told what other evidence the agencies were collecting and what issues they considered important for ultimate resolution of the case. See SER 1811-13. back

35 For examples of the information submitted by Plaintiffs and not considered by the Secretary see pages 44 and 46 above and COE 5944-48, 6565-70, DOI 3161-65; SER 196-200, 226-31, 542-46. back

36 See Yesler Terrace Community Council v. Cisneros, 37 F.3d 442 (9th Cir. 1994). An adjudication is virtually any agency action that results in an order and is not rule making. 5 U.S.C. §551(6) & (7). See also United States v. Florida East Coast Ry., 410 U.S. 224 (1973); Ford Motor Co. v. FTC, 673 F.2d 1008, 1010 (9th Cir. 1981), cert. denied, 459 U.S. 999 (1982). back

37 Portland Audubon Society, 984 F.2d 1534, does not stand for a contrary conclusion as Claimants assert. Br. at 51. There the Court specifically held that ex parte contacts are banned in "quasi-judicial administrative agency proceedings." 984 F.2d at 1546. United States v. Navajo Nation, No. 01-1375 (S. Ct. March 4, 2003), involved business negotiations to establish royalties for a mining lease, not a contested dispute already in court as here. back

38 Claimants conveniently ignore the fact that the agencies also had an obligation to consult with Plaintiffs under NHPA. back

39 In their companion appeal (No. 02-35994) the agencies state that they still disagree with the court's conclusions on the APA and due process issues. Appellants' Opening Br. at 54 n. 23. back

40 There is no indication the agencies have learned their lesson. They now propose to classify the skeleton as unclaimed Native American remains and dispose of it under Section 3(b) of the statute. See Appellants' Brief in companion case 02-35994 at 52, 54. They still refuse to say whether they will let Plaintiffs study it. back

41 Relevant provisions of the statute and regulations include: 16 U.S.C. §470aa(b) (archaeological resources to be protected for the benefit of all Americans); 16 U.S.C. §470bb(1) (human remains are archaeological resources); 36 C.F.R. §79.10(a) & (b) (federal archaeological collections must be made available for scientific uses including study by qualified professionals); 36 C.F.R. §79.8(j) (terms and conditions for scientific uses). Pertinent Corps administrative rules include: EP 1130-2-540§6-3a (collections are not properly managed if not accessible for scientific research and other appropriate uses); ER 1130-2-540§6-2a(3) (collections are to be made available for scientific analysis and scholarly research). back

42 The agencies have conceded that NAGPRA does not prohibit new scientific studies. DOI 2967; SER 540. See also NA IWI O NA KUPUNA O MOKAPU v. Dalton, 894 F. Supp. 1397, 1415 (D. Hawaii 1995) (holding that studies may be conducted to determine cultural affiliation or ethnicity). back

43 See discussion in Bonnichsen, 969 F. Supp. at 646-48. back

44 One example is the claim made by the agencies in their companion appeal (02-35994) that a study permit is needed. Appellants' Opening Br. at 54 n. 23. Nothing in ARPA or the regulations requires a permit for study of skeletal remains after they have been removed from the ground. SER 1433, 1436. The agencies have produced no evidence to the contrary. back

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