The Kennewick Man Case | Court Documents | Briefs

Plaintiffs' Opening Brief (Part 2)

III. DEFENDANTS VIOLATED THE APA AND DUE PROCESS GUARANTEES.

Administrative processes that are arbitrary and capricious, contrary to law, or otherwise unfair violate the APA, and possibly due process protections. See Portland Audubon Soc. 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. den., 494 U.S. 1004 (1989); Greene v. Babbitt, 943 F. Supp. 1278, 1285-1287 (W.D. Wash. 1996). (13)

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

Agency decisions tainted by improper ex parte contacts are contrary to law, arbitrary and capricious, and can violate due process protections. Portland Audubon, 984 F.2d at 1537, n.4; Greene, 943 F. Supp. at 1285-1287. The ex parte ban requires that any agency employee "who may reasonably be expected to be involved in the decisional process" be shielded from contact with "interested persons" outside the agency. 5 U.S.C. § 557(d)(1); Portland Audubon, 984 F.2d at 1539. Ex parte proceedings "are anathema in our system of justice," United States v. Thompson, 827 F.2d 1254, 1258-59 (9th Cir. 1987), and violate basic fairness, preventing the adversarial discussion that is at the heart of American justice. Portland Audubon, 984 F.2d at 1543.

The ex parte ban is particularly applicable to adjudications (14) so participating parties and the public will be protected from the abuses that can result from agency decisions based upon private conversations and secret talking points. Portland Audubon, 984 F.2d at 1542; Marathon Oil v. EPA, 564 F.2d 1253, 1262 (9th Cir. 1977) (adjudicative process requires special protections of APA). Defendants may have thought to proceed informally, but that does not mean the more relaxed procedures of informal adjudication were proper here, nor lessen the prejudicial impact of their pervasive ex parte contacts. While NAGPRA does not expressly mandate a formal adjudication, "the crucial question is not whether particular talismanic 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. Where the ultimate decision turns on sharply-disputed factual issues, proceedings are quasi-judicial and should be accorded APA's procedural protections. Marathon Oil, 564 F.2d at 1261. If defendants had any doubt, the Court's direction on remand to "critically examine all of the evidence in the record as a whole, and make specific findings," Bonnichsen, 969 F. Supp. at 652, n.26, should have made clear the nature of their obligation. See Greene v. Lujan, 1992 WL 533059 (W.D. Wash. 1992), app. on related issue 996 F.2d 973 (9th Cir. 1993) (informal adjudication not proper in tribal status claim).

The ex parte ban applies to anyone who acts as a decisionmaker,(15) which includes not only the official who signs a determination, but also any agency employee who is, or may reasonably be expected to be, involved in the decisional process. 5 U.S.C. § 557(d)(1). There were at least three decisionmakers here who should have heeded the ban: Secretary Bruce Babbitt, the Departmental Consulting Archaeologist (Dr. McManamon) and Dr. McManamon's assistant (Jason C. Roberts).(16) The Appendices show they did not.

Coalition members sent many letters directly to Secretary Babbitt, arguing their position on study and ownership of the skeleton. There is no indication he was screened from them, and his aides responded to several. See Appendix A-1.

Dr. McManamon and Mr. Roberts had substantial direct contacts with the Coalition. See Appendix A-1. Dr. McManamon participated in face-to-face meetings and telephone conferences with Coalition members, and they discussed topics including defendants' studies of the skeleton and information needed to establish cultural affiliation. Dr. McManamon coached Coalition members how to present their claims more effectively. See ER 13-16; COE 0002811-0002814. He and the Coalition corresponded regularly. Mr. Roberts participated in at least one telephone conference with a Coalition member (ER 121; DOI 08607), and Dr. McManamon shared many letters with him.

Appendix A may not include all of the ex parte contacts. At times defendants kept no notes of a meeting or discussion, (or failed to include them in the record) and existing documents do not always identify the participants in meetings or telephone conferences. Moreover, defendants have withheld evidence of more than 50 communications on a claim of privilege.

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

Decisionmakers should avoid ex parte contacts with any person who has an interest "that is greater than the general interest" of the public as a whole. Portland Audubon, 984 F.2d at 1544. The ban includes the White House: "There is no presidential prerogative to influence quasi-judicial administrative agency proceedings through behind-the-scenes lobbying." Portland Audubon, 984 F.2d at 1546.

Kennewick Man was the subject of a special interagency "advisory group" apparently created in 1997. ER 307; COE S-616. This advisory group included representatives of the Army Corps, DOJ, DOI and White House. See ER 11; COE 0002504; ER 66; DOI 02002. It met at least six times, (17) but the record has notes for only two meetings. Dr. McManamon attended both, and discussed curation of the skeleton, investigation of the discovery site, and consultation with the Coalition. ER 11; ER 66. An e-mail from Dr. McManamon also refers to "the details of cultural affiliation and disposition, the scientific testing, cultural affiliation research." ER 65; DOI 01993. Defendants either did not keep, or withheld, documentation of the substance of the other meetings, and because the record is incomplete, plaintiffs cannot tell whether other advisory group meetings were held. See Appendix A-2.

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

Defendants should know that it is improper for trial advocates to have ex parte contacts with agency decisionmakers in quasi-judicial proceedings since it was DOI's failure to stop such contacts that resulted in a due process violation and contempt finding in Greene, 943 F. Supp. at 1289, on remand from 64 F.3d 1266 (9th Cir. 1995). The court criticized BIA counsel:

"As an advocate, he was prohibited from participating in, advising, or assisting the Assistant Secretary with her final decision as to tribal recognition for the Samish. * * * The purpose of this Court's original remand order in 1992 was to take this case out of the political arena and to assure that the Samish would have their claims heard by an impartial and disinterested fact finder. * * * This purpose was substantially frustrated, however, by the government lawyer's improper ex parte communications with the decision maker, which resulted in a violation of the plaintiffs' rights to due process." 943 F. Supp. at 1286-87.

This Court's 1997 remand directed the agencies to conduct a new, fair decision-making process. Despite the availability of thousands of other government attorneys, the decisionmakers elected to work closely with defendants' litigation advocates. While litigation counsel may have needed to consult with the decisionmakers to obtain information for their status reports to the Court, their contacts should have ended there. Instead, the litigation lawyers were brought onto the decisionmaking team, destroying the fairness and impartiality of the process. Among other things, the decisionmakers copied litigation counsel with documents, included litigation counsel in meetings, and even sought their legal advice as they wrote their final decisions. See Appendix A-3.

Defendants admit their litigation counsel gave legal advice to the decisionmakers, and withheld documents from the record on that basis. (18) One such document reflects that on July 25, 2000 decisionmaker Roberts consulted with advocate Bevan about the standard for showing cultural affiliation under NAGPRA (ER 326, DOI Modified Index of Privileged Documents at 6); the next day he sent her comments on a draft standard. Two days later, decisionmaker McManamon communicated to advocate Bevan on the same subject. Litigation counsel (Simmons and Bevan) then discussed the standard together (properly, since both are advocates), but then one of them forwarded their thoughts to decisionmakers McManamon and Roberts on August 11, 2000. In September, as the deadline approached, decisionmaker Roberts discussed an evidentiary issue (the ICC judgment) with advocate Bevan. A few days before the Secretary signed the Determination, decisionmaker McManamon and advocate Bevan communicated about what it said. Other communications occurred and were withheld from the record as privileged.(19) No apparent consideration was given to the impropriety of decisionmakers (who are supposed to be neutral and unbiased) receiving legal advice from advocates who are out to win a case. The advisory role should have been reserved to unbiased counsel, rather than advocates who opposed plaintiffs' interest. See, e.g., Camero v. United States, 375 F.2d 777, 780 (Ct. Cl. 1967) (difficult to imagine "a more serious incursion on fairness" than ex parte contacts between an advocate and the decisionmaker); Greene, 943 F. Supp. at 1288; ER 378; AG Manual at 57 (agency decisionmakers should not consult with anyone who "engages in the performance of investigation or prosecuting functions in a case").

D. Defendants Foreclosed Meaningful Participation by Plaintiffs.

Even if informal adjudication were proper here, defendants paid scant attention to due process. A party to an administrative proceeding:

"is entitled to know the issues on which a decision will turn, and to be apprised of the factual material on which the agency relies for decision so that he may rebut it. Indeed, the Due Process Clause forbids an agency to use evidence in a way that forecloses an opportunity to offer a contrary presentation." Williston Basin Interstate Pipeline Co., v. FERC, 165 F.3d 54, 63 (D.C. Cir. 1999).

Despite that requirement, defendants withheld information about what issues were under active consideration and what evidence they were considering. When plaintiffs asked, they were curtly rebuffed by defendants' attorneys:

"It would be inefficient and inconsistent with administrative law principles to provide portions of the record in advance on a piecemeal basis as you suggest. * * * You raise some concern that you will not be able to respond to issues raised to the Corps unless you see what has been submitted to the Corps. However, general rules of administrative practice are that parties should submit information that they wish the Corps to consider, not that the parties respond to issues presented to the Corps." ER 37; COE 7236.

Other requests met with similar responses or silence.(20)

Such treatment is inconsistent with the APA and due process. See Ohio Bell Tel.Co. v. Public Utilities Commission of Ohio, 301 U.S. 292, 300, 57 S. Ct. 724, 81 L.Ed 1093 (1937); Sangamon Val. Television Corp. v. U.S., 269 F.2d 221, 224 (D.C. Cir. 1959) ("the parties who were opposing the transfer of Channel 2 from Springfield to St. Louis could not question Tenenbaum's contention, since they did not know he was making it.")

The Secretary and his advisers were surely aware of this requirement, for the Ninth Circuit reminded them of it just a year before the Kennewick Man discovery. Greene, 64 F.3d at 1274-75, held that DOI and the Secretary had violated the claimants' due process rights by conducting the same kind of secret, closed-door decisionmaking they used in this case:

"[T]he petitioning tribe did not have access to all of the material evidence and therefore had to speculate whether its materials adequately addressed materials submitted by others. * * * Informal decision-making, behind closed doors and with an undisclosed record, is not an appropriate process for the determination of matters of such gravity." 64 F.3d at 1274-75.

Defendants' August 1, 1997 rejection of plaintiffs' information request is eerily reminiscent of the treatment condemned by the Supreme Court in Ohio Bell Tel. Co.:

"The company protested. It asked disclosure of the documents indicative of price trends, and an opportunity to examine them, to analyze them, to explain and to rebut them. The response was a curt refusal." 301 U.S. at 300.(21)

Defendants applied different rules to the Coalition. Defendants had at least eighteen meetings and telephone conferences with Coalition representatives, and repeatedly asked the Coalition to seek and supply particular information. See Appendix B-1, B-2, B-3. Coalition members were given special access to the government's materials including advance access to the cultural affiliation reports (22) and the first phase study reports.(23) Defendants gave feedback on the Coalition's affiliation materials (see ER 156; DOI 09101), and coached the Coalition on issues to address.(24) Coalition members were even allowed to survey the discovery site for defendants. ER ---313-16; COE S-913, 914, 920, 922. This special treatment was contrary to the Court's 1997 remand and later admonitions.(25)

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

(1) An agency's record must document all information on which it relied in reaching its decision, including ex parte communications. See Portland Audubon, 984 F.2d at 1548. This record contains notes for only four of Dr. McManamon's eleven known meetings and telephone conferences with the White House and Coalition members. See ER 11, 17a-c, 18a-g, 83a; DOI 02883, 03977; COE 0002504, 5127-5137. These notes are merely general outlines that do not record all that was said, (26) or how the information shared may have influenced the Determination.

(2) The Secretary claimed that oral traditions demonstrate a "continuity" between the Coalition and the people of Kennewick Man's era, relying extensively on the Boxberger report. That work, however, was based in part on unreported telephone conversations with "appropriate tribal representatives." ER 184; DOI 10267. Defendants did not record how these conversations may have influenced his conclusions. For all the Court can tell, they may have included contradictory information.

(3) Parties to administrative proceedings are entitled to absolute neutrality by the decisionmakers. Gibson v. Berryhill, 411 U.S. 564, 579, 93 S. Ct. 1689, 36 L.Ed.2d 488 (1973); Staton v. Mayes, 552 F.2d 908, 913 (10th Cir. 1977), cert. den., 434 U.S. 907 (1977); Throckmorton v. NTSB, 963 F.2d 441, 445 (D.C. Cir. 1992); NLRB v. Phelps, 136 F.2d 562, 563-64 (5th Cir. 1943). The Army Corps and Secretary, however, expressed their "partnership" with the Coalition, (27) and their actions reflect a commitment to favor the Coalition, regardless of the evidence.(28)

(4) Agency decisionmakers may not prejudge contested issues. Antoniu, 877 F.2d at 724 (improper prejudging of factual and legal issues); Cinderella Career and Finishing Schools, Inc. v. FTC, 425 F.2d 583, 590 (D.C. Cir. 1970) (Chairman disqualified for speech). But eight months before the Secretary issued his Determination, Dr. McManamon was already declaring its contours. On January 13, 2000, he announced that Kennewick Man was born and lived in the area where he died.(29) At the same time, he declared his personal support for the proposition that the Americas were colonized from a single source in northeast Asia, rejecting other competing hypotheses about the peopling of the New World.(30)

(5) The APA does not permit a shift in the burden of proof unless Congress authorizes it. See Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 271, 114 S. Ct. 2251, 129 L.Ed.2d 221 (1994). But Dr. McManamon stated that "absent evidence to the contrary, the claimants' submitted evidence is true." ER 157; DOI 09525. Since plaintiffs were not allowed to know what evidence had been submitted, they were prevented from providing contrary evidence. In effect, this process established an irrebuttable presumption in favor of the Coalition's evidence that was further aided by defendants' coaching on how to fill in any evidentiary gaps and create a record favorable to its position. The Secretary accepted the Coalition's arguments at face value, even though his staff worried about their sufficiency. See Section IIE above. He dismissed contrary archaeological and biological evidence with little or no discussion, ER 162-63; DOI 10015-10016, and made no effort to reconcile his decision with BLM's decision rejecting tribal claims to the 9400 year old Spirit Cave remains (31).

(6) Defendants did not articulate "a rational connection between the facts found and the choice made" as required by the APA, but relied on generalities and naked conclusions, such as "the collected oral tradition evidence suggests a continuity." ER 162; DOI 10015. They did not articulate why some facts were accepted and others rejected, what specific facts they relied upon, or how those facts rationally compelled their decision. The Court and plaintiffs are left to guess at the ultimate reason.

IV. DEFENDANTS VIOLATED THE ESTABLISHMENT CLAUSE.

The First Amendment's proscription that "Congress make no law respecting an establishment of religion" is at the heart of a government founded upon neutrality to religion and complete separation between church and state. (32) Regardless of the purpose, a practice violates the First Amendment if it affiliates with religion, conveys a message of endorsement, or can be perceived as official approval of one faith over another, or faith over non-religion. Lee v. Weisman, 505 U.S. 577, 599, 112 S. Ct. 2649, 120 L.Ed.2d 467 (1992) (Blackmun); Lynch v. Donnelly, 465 U.S. 668, 687, 104 S. Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor), reh. den. 466 U.S. 994 (1984); Separation of Church and State C'tee v. City of Eugene, 93 F.3d 617, 619 (9th Cir. 1996).

Native American religions are not entitled to special treatment. Havasupai Tribe v. U.S., 752 F. Supp. 1471, 1488 (D. Ariz. 1990), aff'd, 943 F.2d 32 (9th Cir. 1991), cert. den., 503 U.S. 959 (1992); Wilson v. Block, 708 F.2d 735, 746 (D.C. Cir.), cert. den., 464 U.S. 956 (1983) and 464 U.S. 1056 (1984). Although defendants could properly consult with the Coalition about religious practices in order to avoid a Free Exercise violation, Wilson, 708 F.2d at 746, they could not use religious information to make substantive decisions about what is true. Defendants ignored that distinction.

Although NAGPRA states that "oral tradition" evidence can be used to determine cultural affiliation in museum collections; (33) it does not direct consideration of religious beliefs.(34) Nor should it be presumed to do so. (35) Defendants hopelessly confused cultural information with religious beliefs. The Determination placed particular emphasis on oral tradition, ER 162; DOI 10015, but made no attempt to distinguish between the kinds of secular oral histories that are constitutionally acceptable, and the kinds of religious teachings that are not. Religious teachings, such as the Coyote stories, form the foundation of the Boxberger report which argues for "continuity" between the Coalition and the people (or peoples) that inhabited the Columbia River Plateau 9500 years ago. See ER 186-190; DOI 10291-10295. He calls them "stories," "narratives" and "histories" (ER 185, 186, 190; DOI 10272, 10291, 10295), but no amount of secular renaming can disguise their unabashed religious content. He concedes that these kinds of oral traditions "have both moral and explanatory elements" and that "all stories and legends contain history, resource utilization and religious lessons at one and the same time." ER 185; DOI 10272. Coalition documents reinforce the religious nature of its claim.(36)

Defendants repeatedly link religious stories with historical events, all in an effort to show that those religious beliefs point to a prehistory that is "true" for purposes of cultural affiliation. (37) To use religious belief for such purposes violates the Establishment Clause. A factfinder may not decide the truth of religious tenets and thereby transform "rational debate into theological decree." Lee v. Weisman, 505 U.S. at 607; Ballard, 322 U.S. at 86. Government may not even decide which religious beliefs are traditional or accepted by a group, and which are not. "It is the role of theologians, not courts, to define the accepted tenets of a particular faith." Grant v. Joe Myers Toyota, Inc., 11 S.W.3d 419, 425 (Tex. App. 2000)(Hudson). See also Burgess v. Rock Creek Baptist Church, 734 F. Supp. 30, 33-34 (D.D.C. 1990) (court presiding over church dispute may not base ruling on doctrine and practice).

The ban against governmental endorsement of religion forbids "conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred." Wallace v. Jaffree, 472 U.S. 38, 70, 105 S. Ct. 2479, 86 L.Ed.2d 29 (1985). Accord, Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 27-28, 109 S. Ct. 890, 103 L.Ed.2d 1 (1989)(Blackmun); Edwards v. Aguillard, 482 U.S. 578, 593, 107 S. Ct. 2573, 96 L.Ed.2d. 510 (1987); Abington School District v. Schempp, 374 U.S. 203, 305, 83 S. Ct. 1560, 10 L.Ed.2d 844 (1963)(Goldberg) (no favoritism among sects or between religion and nonreligion). Government may not "promote one religion or religious theory against another or even against the militant opposite," Epperson v. Arkansas, 393 U.S. 97, 104, 89 S. Ct. 266, 21 L.Ed.2d 228 (1968), may not take a position on questions of religious belief, Lynch, 465 U.S. at 688, and may not "use religious authority to pursue secular ends." Lee, 505 U.S. at 608.

A private consultant such as Dr. Boxberger might not understand the significance of these laws for his work, but defendants should have. His report does not indicate that he was ever instructed to avoid probing the doctrinal content of religious belief, ER 184; DOI 10267, and defendants always intended that traditional beliefs would be considered in their cultural affiliation study. ER 489-90; Tr., Sept. 14, 1999 at 43-44. Nor is there any indication that he was ever told to consider the contrary evidence supplied by plaintiffs.(38) He and defendants engaged in a "manifestly religious exercise" to answer a secular question, which "conveys a message of exclusion to all those who do not adhere to the favored beliefs." Lee, 505 U.S. at 604, 606.

Defendants did not just avoid interfering with Coalition religious practices, as Standing Deer v. Carlson, 831 F.2d 1525, 1530 (9th Cir. 1987) recommends. They began and ended at least one consultation meeting with prayers, ER 17a; COE 5127, and they accepted religious beliefs as true. They stated that NAGPRA requires deference to traditional beliefs, (39) rejected requests to study the site when there were religious objections,(40) endorsed Coalition opposition to plaintiffs' study of the skeleton (ER 94; DOI 04581; ER 398 (Rubenstein, 10/16/96)), and denied plaintiffs access to CT scan data because of tribal religious sensitivities.(41) Defendants ignored the principle that government "has no legitimate interest in protecting any or all religions from views distasteful to them." Epperson, 393 U.S. at 107. See also Badoni v. Higginson, 638 F.2d 172, 178-79 (10th Cir. 1980), cert. den., 452 U.S. 954 (1981) (rejecting religious challenge to a federal land management plan in part because the requested tourist ban would be a "clear violation of the Establishment Clause").

Plaintiffs are teachers, and defendants have restricted their teaching on religious grounds even though the Constitution "does not tolerate laws that cast a pall of orthodoxy over the classroom" nor permit government to require that teaching and learning be tailored to the principles of any religion or dogma. Epperson, 393 U.S. at 106.

FOOTNOTES

(13) NAGPRA is not exempt from APA and due process protections: "nothing in this Act shall be construed to 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(4) (emphasis supplied).

(14) The overall process here was an adjudication, which is any agency process to formulate any disposition in a matter other than rulemaking. Portland Audubon, 984 F.2d at 1540-41 (process is quasi-judicial where agency's task is to adjudicate disputed facts); RLC Industries Co. v. C.I.R., 58 F.3d 413, 417-18 (9th Cir. 1995) (administrative action is either adjudication or rulemaking with rulemaking used to implement future law or policy); 5 U.S.C. § 551(5)-(7).

(15) Even before the 1976 Sunshine Act (90 Stat. 1246), the 1947 Attorney General's Manual emphasized that a deciding officer "is prohibited from obtaining or receiving evidentiary or factual information bearing on the issues unless, after notice, all parties are permitted to participate." ER 375; AG Manual at 54 This ban includes expert evidence: "the officer may not informally obtain evidentiary material from such experts either during or after the hearing, any more than he may from other witnesses." Id.

(16) There were likely other decisionmakers, but the ex parte contacts by these three were so extensive that the Court need not search for a full list of involved agency staff. Secretary Babbitt, the senior official of DOI, signed the September 21, 2000 Determination. Dr. McManamon and Mr. Roberts had important decisionmaking roles and were responsible for "research, analysis, evaluation, synthesis, and application of these diverse lines of evidence" relating to cultural affiliation of the skeleton. See ER 158; DOI 09529. Dr. McManamon named himself as the author of the January 11, 2000 document entitled "Determination That the Kennewick Human Skeletal Remains are 'Native American.'" ER 165; DOI 10018.

(17) Meetings occurred on October 20, 30, November 3, 4, 6 and 7, 1997. See ER 11; COE, 0002504; ER 66, 69; DOI 02002, 02005. Dr. McManamon also met with White House staff on July 9, 1998. ER 83a; DOI 03977.

(18) See response to plaintiffs' challenge to privilege list: "When a document was specifically addressed to the Department of Justice for legal advice or comment, however, an attorney-client privilege was appropriately asserted. Plaintiffs specifically question the assertion of an attorney-client privilege over two emails described in the administrative index as 'consultation with tribes and topic questions for cultural affiliation.' These emails, which were addressed specifically to attorneys at the Department of Justice and/or the Department of the Interior, sought legal advice and comment on the Department of the Interior's consultation with tribes." ER 421 (Bevan, 1/11/01).

(19) See, e.g., documents on defendants' privilege list (ER 321) for 10/7/99, 12/7/99, 3/27/00, 5/26/00, 6/14/00.

(20) For example, on April 29, 1998 plaintiffs wrote: "please advise us of the types of information (e.g., anatomical, genetic, cultural, etc.) that will be considered by the government when deciding whether the skeleton is Native American within the meaning of NAGPRA, and how such information relates (or does not relate) to Dr. McManamon's interpretation of the term 'Native American.' * * * [P]laintiffs are at a complete loss to understand what standard will be used by the government in resolving this issue, and what evidence is being sought" ER 400-01, (Schneider, 4/29/98). Defendants did not respond. See also ER 33; COE 7083 (Schneider, 9/15/97) and ER 407 (Schneider, 3/21/00), for other requests.

(21) See also Ober I, 84 F.3d at 314-15 (9th Cir. 1996) (improper to rely on information from one interested party without giving other party opportunity to comment); Williston Basin, 165 F.3d at 64 (agency decision invalid where it improperly "teased two GDP figures from the background section to a single exhibit" without forewarning); Koniag, Inc. v. Andrus, 580 F.2d 601, 610 (D.C. Cir. 1978), cert. den., 439 U.S. 1052 (1978) (secret review process inconsistent with constitutional protections).

(22) Defendants forwarded preliminary drafts of the reports as early as February 3, 2000. See ER 117, 119; DOI 06746, 06987. Plaintiffs, who asked for them in March (ER 407 (Schneider, 3/21/00)), saw them only seven months later after they had been finalized for filing with the Court.

(23) The NPS website had a restricted section. Coalition members had access but plaintiffs did not. ER 99; DOI 05001.

(24) The July 7, 2000 meeting agenda included "areas where tribal representatives may be able to supply additional information to address perceived discontinuities or gaps in the anthropological record." ER 14; COE 0002812. Afterwards, Dr. McManamon wrote to Coalition members seeking information on specific topics such as obsidian, olivella shells, Ice Age volcanic eruptions and floods (ER 122; DOI 08715), burial practices, and excavations on the Umatilla reservation (ER 123; DOI 08718).

(25) See ER 493; Tr. of May 28, 1998 at 95.

(26) Compare the detailed notes recorded for DOI's interviews with radiocarbon specialists. ER 95-98; DOI 4591-4594.

(27) See ER 396; COE 656, Meier 8/29/96 when no tribal claim had even been made, and Babbitt speech to National Congress of American Indians, ER 338, AP news story, November 14, 2000.

(28) The July 14, 1998 meeting with Coalition is illustrative. Armand Minthorn (from the Coalition) asked whether there would be additional testing "if we get our answer on the first try" and DOI responded that "we will add language that if we get right answer 1st time will not go forward." ER 18; COE 5130. Despite the remand, this is scarcely different from assurances defendants made in 1996: "I told him we will do what the tribes decide to do with the remains, but that we would not involve ourselves in that decision. I assured him that we are working under the assumption the decision will be what the Umatilla have asked for." ER 42; COE 7905 (e-mail).

(29) ER 108; DOI 06040. See also Dr. McManamon's scope of work statement for defendants' affiliation studies: "the ancient group represented by the Kennewick human remains, which likely resided within the same region 9,500 years ago." ER 100; DOI 05276.

(30) The Court's Opinion, 969 F. Supp. 651, n.24 noted some of the potential implications of these competing hypotheses.

(31) BLM is part of DOI. The age of the Spirit Cave remains is reflected at ER 124-25; DOI 08745, O8760. The full report is at DOI 8745 et seq. or at http://www.nv.blm.gov.

(32) "[M]an's relation to his God was made no concern of the state" which is forbidden to favor any creed. U.S. v. Ballard, 322 U.S. 78, 87, 64 S. Ct. 882, 88 L.Ed 1148 (1944).

(33) See 25 U.S.C. § 3005(a). Defendants assume this standard should also apply to inadvertent discoveries, 43 C.F.R. § 10.14, even though Congress did not.

(34) Even where the regulations require consultation there is no suggestion that religious beliefs play a part in determining cultural affiliation. See 43 CFR § 10.2(e) (defining cultural affiliation and citing list of evidence); 43 CFR § 10.5(b)(3) (traditional religious leaders should be consulted for information about possible descendants). Neither provision directs that claimants or religious leaders be consulted for the religious content of their beliefs.

(35) See Williams, 115 F.3d at 662 ("if Congress means to push the constitutional envelope, it must do so explicitly").

(36) See ER 118; DOI 06932 ("religious teachings tell our people their ancestors have always lived in the Columbia Plateau"); Joint Amici Memorandum at 5 (ER 432; dkt. #83) ("when remains are distributed and remain above the ground, their spirits are at unrest"); Memorandum in Support of Motion to Intervene (ER 500; dkt. #276) (referencing traditional religious law); Minthorn Affidavit attached to Memorandum in Support (ER 476; dkt. # 86) (referencing Washat religion); ER 52; COE 8253 ("there cannot be scientific, educational, or informational reasons enough to override the moral, ethical and spiritual rights of the Indigenous Peoples"); Response Opposing Motion to Compel, Dick Affidavit (ER 526a; dkt. #389) ("human remains and the images and data derived from them are sacred").

(37) See ER 162; DOI 10015 (Determination); ER 191; DOI 10298 (Boxberger). But the Secretary ignored evidence of the difficulties inherent in the use of oral traditions. See ER 139-147; DOI 08986-08994 (Simic); ER 167-171; DOI 10072-10076 (DOI staff). DOI staff concede that oral traditions "are difficult, if not impossible" to place in chronological time. ER 168; DOI 10073.

(38) Dr. Boxberger cites more than 100 references, including the "Colville Tribal Statement of Traditional Belief," Kuykendall's "Graphic Account of the Religions or Mythology of the Indians of the Pacific Northwest," Jacobson's "Myths and Legends of the Pacific Northwest," Miller's "Prophetic Worlds," and Mooney's "the Ghost Dance Religion." No reference is made to anything written by plaintiffs or their experts, such as Dr. Archambault, who is Native American. See ER 127, 129; DOI 08974, 08976.

(39) ER 94; DOI 04581.

(40) ER 292-93; COE S-486-87; ER 482; Plaintiffs' Third Status Report Ex. B at 24, dkt. #137.

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