Plaintiffs' Reply Memorandum
Paula A. Barran, OSB No. 80397
Alan L. Schneider, OSB No. 68147
Attorneys for Plaintiffs
IN THE UNITED STATE DISTRICT COURT
ROBSON BONNICHSEN, C. LORING BRACE; GEORGE W. GILL, C. VANCE HAYNES, JR., RICHARD L. JANTZ, DOUGLAS W. OWSLEY, DENNIS J. STANFORD and D. GENTRY STEELE,
UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, U.S. ARMY CORPS OF ENGINEERS, U.S. DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE, FRANCIS P. McMANAMON, ERNEST J. HARRELL, WILLIAM E. BULEN, JR., DONALD R. CURTIS, LEE TURNER, LOUIS CALDERA, BRUCE BABBITT, DONALD J. BARRY, CARL A. STROCK, and JOE N. BALLARD,
Plaintiffs' Reply Memorandum (on electronic data)
Plaintiffs have requested a copy of the electronic data from which defendants generated CT scans. During extensive correspondence, defendants initially had no objection even to providing plaintiffs complete copies of the scans (as long as plaintiffs bore the costs). (1) Now defendants have done a complete reversal and refused not only to provide copies of the scans, but now they also refuse to supply the electronic data so that plaintiffs can review it at their own expense. Defendants offer no legitimate support for withholding a part of the administrative record, and should be required to provide the requested data.
Defendants insist that plaintiffs should not have the data because they could manipulate it "to print inaccurate images of the remains." The implication here is that plaintiffs might play with the data, manipulate it and supply this Court with the equivalent of forged evidence, causing defendants no end of trouble and worry. Defendants also imply that they have cause to worry that plaintiffs might make lots and lots of copies of these images which they might use for bad purposes or in other ways that defendants do not like. (2) Plaintiffs (who value their reputations) and their counsel (who enjoy practicing law before this Court) do not intend to falsify evidence. Even if defendants don't think that is enough to ally their fears, they still have the originals and could readily bring suck wickedness to the Court's attention if it happened.
Of course, the fact that the data can be manipulated is an important issue that the Court should consider, for plaintiffs have a right to access the entire administrative record so that they can assure themselves that defendants have not done any manipulating of their own. Defendants' decision to withhold access to the electronic data from the Court and from plaintiffs is analogous to refusing to permit inspection of an original document when the Court or the other party has a poor photocopy.
Defendants' explanations that they are entitled to withhold this data because it will cost plaintiffs money to make their own copies anyway is impertinent. Defendants are not in a position to know how much copies will cost plaintiffs, or what access plaintiffs have or might have to the proper computer equipment. And in any event, defendants should not be troubling themselves about plaintiffs' reproduction costs as an explanation for precluding access to a portion of the administrative record.
The electronic data are part of the record, and defendants have cited no authority for withholding hit. They state that the amici tribes have objections to releasing the data; but plaintiffs are parties to this case, and have a right to see and use the evidence which was before the agencies in making their decision.
Steadman v SEC, 450 US 91, 67 Led2d 69, 101 S Ct 999 (1981) explained that Congress passed the Administrative Procedure Act precisely because it was concerned about agency decision making premised on evidence which was of poor quality and insufficient quantity. That, of course, means that challengers to administrative decisions have a presumptive right to see the evidence, and to confirm or question what it means. That another interested party (in this case the claiming tribes) might object does not justify depriving a different interested party from evidence or data it might need in making a challenge (particularly where objections are religious in nature). If that were not so, then a government agency could easily hide behind such third-party objections to shield its conclusions from review and challenge, and upset the scope of judicial review under the act. In the words of the District of Columbia Circuit:
There is not any indication that Congress intended the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) to amend the APA, or that it should otherwise restrict or limit the dissemination of information about remains or objects in Federal custody. It does not permit the defendants to draw a curtain of silence over information relating to those items. For that matter, restricting information about assertedly repatriatable items would be contrary to the goal of ensuring those decisions are as accurate as possible. (3)
Defendants also ignore the fact that data can also be used to generate more accurate images with possibly better equipment, which might permit plaintiffs to evaluate details that defendants hard copy images do not disclose.
Finally, defendants complained that this motion should not have been filed. Plaintiffs filed it because the Court told them to do so if defendants elected to withhold this data.
Dated this 26th day of January, 2001.
ALAN L. SCHNEIDER, PC
BARRAN LIEBMAN LLP
(1) Even as late as the October 25, 2000 hearing, defendantsgave no indication that they had any objection to providingthe raw computer data for the CT scans. back
(2) For their part, amici are concerned that drawings andmodels have been generated, although they fail to acknowledgethat none of these has been done by the plaintiffs in thecase. But they too cite no statutory basis for withholdingthis data, other than either religious beliefs (whichimplicate the Establishment Clause) or that they do not wantothers to see images. back
(3) Nor do amici have proprietary rights to the images atthis
stage, and they cite no authority that they haveultimate
ownership of the information that is now ingovernment hands. back
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