Appellees Response to Request for Extension
Alan L. Schneider, OSB No. 68147
Paula A. Barran, OSB No. 80397
Attorneys for Plaintiffs-Appellees
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
ROBSON BONNICHSEN, et al.,
UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, et al.,
CONFEDERATED TRIBES OF THE COLVILLE RESERVATION, ET AL.,
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
APPELLEES' RESPONSE TO REQUEST FOR EXTENSION
Plaintiffs-appellees oppose any further extension of the briefing schedule in this case. When this Court stayed the district court's order allowing plaintiffs to study the Kennewick Man skeleton, it stated that this appeal and companion appeal 02-35996 would be handled on an expedited basis. See order dated February 12, 2003. The Court also warned defendants and the tribal appellants that "[a]ny further request to extend time to file briefs is disfavored." See order dated February 11, 2003 at 3. That admonition should be enforced.
This coming July will mark the seventh anniversary of the discovery of the Kennewick Man skeleton. Throughout the course of this lawsuit, defendants have found one excuse after another to delay a final resolution of the case. In June 1997 the district court vacated defendants' first determination concerning the skeleton and expressly instructed them "to proceed expeditiously" and address the issues "in a timely manner." Bonnichsen v. U.S., 969 F. Supp. 628, 645 (D. Or. 1997). Defendants' response was anything but expeditious or timely.
First there was a six-month delay while the agencies waited for Dr. McManamon to issue an opinion letter responding to some of the questions raised in the district court's remand decision. Then three more months elapsed while the Army Corps and the Department of the Interior worked on a decision-sharing arrangement. More time was then lost designing a protocol or plan for study of the skeleton even though plaintiffs had already given the agencies a detailed roadmap of what the agencies needed to do. It was not until February 1999, twenty months after the remand decision, that defendants finally began their first phase studies of the skeleton. Plaintiffs were not allowed to participate in those studies even though they frequently act as experts for defendants in other situations requiring analysis of human skeletal remains.
Defendants then took another six months to plan and carry out new radiocarbon dating tests in September 1999. More than a year before they were warned that such tests would be needed, but they chose to ignore those warnings. Another delay of six months then followed while defendants conducted DNA tests in April 2000 on bone samples taken from the skeleton. Even then the foot dragging did not end. Plaintiffs and the district court had to wait for months to get the administrative record from defendants even though they had promised in 1999 to have it ready once the new determination was made. But for court-imposed deadlines, we might still be waiting for a final decision from the agencies. See trial court order dated September 21, 1999 at 5; SER 1618.
Despite employing the world's largest law firm, the Department of Justice, defendants seem unwilling to adapt to anyone's schedule but their own. The original briefing schedule set for this appeal called for defendants' opening brief to be filed on February 13, 2003. See order dated October 30, 2002. That date was not convenient for defendants so they requested and received an extension until March 14, 2003. See order dated February 11, 2003. Even though that order expressly stated that further requests for extensions would be "disfavored", defendants now claim to need additional time to file their optional reply brief.
Adhering to the Court's schedule should not cause any undue hardship for the government's attorneys. Defendants have had the assistance of at least a dozen attorneys throughout this case. The issues and most of the cases discussed in plaintiffs' answering brief are not novel since they were extensively briefed at the trial court level. Moreover, although defendants argue that plaintiffs had "extra time" to prepare their reply brief, it bears emphasis that none of the adjustments to the briefing schedule were at plaintiffs' request.
Briefing in this case has already been delayed several times, first at the request of defendants and then twice at the instigation of amici supporting the tribal appellants in the companion appeal. Accordingly, plaintiffs ask that this new request for an extension be denied. In the alternative, if the extension is granted, plaintiffs request that the Court's order staying study of the skeleton be lifted. Plaintiffs have been waiting for almost seven years now for an opportunity to study this rare fossil from a poorly understood period in American prehistory. While they wait time continues to pass. Two of the plaintiffs have already retired from active teaching since this lawsuit began, and others are fast approaching retirement age. Their average age is approximately 64 years, and two are over 70 years old. They should not be required to continue paying a price for defendants' failure to engage in prudent advance planning.
RESPECTFULLY SUBMITTED this 29th day of May 2003.
BARRAN LIEBMAN LLP
Return to Communications with the Court