Judge's Order of September 21, 1999IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBSON BONNICHSEN, C. LORING
UNITED STATES OF AMERICA,
JELDERKS, Magistrate Judge:
Robson Bonnichsen, C. Loring Brace, George W. Gill, C. Vance Haynes, Richard L. Jantz, Douglas W. Owsley, Dennis J. Stanford, and Gentry Steele (the Bonnichsen plaintiffs) seek an order requiring defendants to make an immediate final decision concerning their request to study the skeletal remains of an individual often referred to as the "Kennewick Man." In the alternative, the Bonnichsen plaintiffs seek an order construing defendants' delay in reaching a decision as a final agency action denying their study request, and lifting the stay in this litigation so that these plaintiffs may seek review of that denial.
The motion is granted in part and denied in part as set out below.
The Army Corps of Engineers (the Corps) took possession of the "Kennewick Man" skeleton within a few weeks of its discovery in July 1996. on September 17, 1996, the Corps published its "Notice of Intent to Repatriate Human Remains" to five Columbia River basin tribes and bands. Several scientists wrote to the Corps protesting the decision to repatriate the remain", and requesting reconsideration of the decision. The Bonnichsen plaintiffs brought the present action seeking to establish their right to study the skeleton after the Corps failed to respond to these letters.
During a hearing held on June 2, 1997, I suggested that defendants would need to decide certain issues within a reasonable time, and noted that courts can set limits for agency action when necessary. In an opinion filed on June 27, 1997, I vacated the Corps' decision to repatriate the skeleton (except to the extent that the Corps had already rescinded that decision), and remanded this matter to the Corps for further consideration. I also set out a series of questions that I thought the Corps should consider in determining whether to grant the Bonnichsen plaintiffs' request to study the remains. Though I did not set out a specific deadline for the Corps' ultimate decision on that issue and on the question of the disposition of the remains, I noted that I expected the Corps "to proceed expeditiously," and observed that the court "has the authority to intercede if the issues are not addressed in a timely manner." Bonnichsen, et al. v. United States of America. et al., 96-1481 JE, slip op. at 32 (D. Or. June 27, 1997). Nearly a year later, during a hearing held on May 28, 1998, I noted that ample time had passed to allow defendants to at least set out a clear time line for the resolution of the relevant issues, and added that it was time to have the issues resolved at the agency level.
It appears that defendants have made little progress since that date in resolving the factual and legal questions raised in this action(this interpretation of the statute may of course be subject to judicial review in future proceedings in this action). At the hearing held on September 14, 1999, to consider the pending motion, defendants advised the court that they considered any person who was in the territory now comprising the United States before the arrival of modern European settlers to be "indigenous," and that the remains of such a person are therefore subject to NAGPRA. This is consistent with the legal position defendants have asserted since the first days of this action.) Given that this position renders the age of the skeleton of critical importance, defendants' decision to wait nearly three years to begin radiocarbon analysis to confirm the age of the skeleton is difficult to understand. Defendants' own expert reported nearly a year ago that such testing should be performed as soon as possible, and defendants have not satisfactorily explained the long delay in following that advice. During the September 14 hearing, defendants explained that they had delayed the radiocarbon analysis because they hoped to determine the age of the remains by comparison with the soil strata at the site where the skeleton was found. That explanation seems inconsistent with defendants' earlier decision to bury the site under tons of rubble, complicating if not precluding completion of the very studies that they now assert were needed.
At the September 14 hearing, defendants also stated that, following confirmation of the age of the skeleton, they will need at leant a year or two to assess whether the remains are culturally affiliated with any modern tribe. They further indicated that they have only recently begun to consult with the interested tribes concerning that assessment, and confirmed that they have made little or no progress towards resolving the issue of cultural affiliation during the three year" that this action has been pending.
It has been clear from the beginning of this litigation that, if the remains are determined to be those of a person who is "indigenous" within the meaning of NAGPRA, determining possible cultural affiliation would be of critical importance, Defendants have offered no reasoned explanation for the lack of progress in conducting this inquiry.
In sum, the court is concerned by what appears to be a pattern of unnecessary delay in this action. Certainly, the issues presented are not easy, but they do not become easier with the passage of time. Throughout this litigation, I have attempted to avoid interference with the administrative process, and have required defendants to act only when their care for the skeleton did not meet reasonable standards of curation. However, remarkably little has been achieved during the three years during which defendants have had custody of the skeleton, and defendants appear to be little closer to obtaining answers to the critical questions raised by this litigation than they were when the action was filed.
The Administrative Procedures Act requires federal agencies to make decisions such as those at issue in this action without unreasonable delay. See 5 U.S.C. S 706(1) (APA provides that courts shall compel "agency action unlawfully withheld or unreasonably delayed"). Plaintiffs are entitled to a timely decision, and it does not appear that one will be forthcoming without a court-imposed deadline. I will therefore establish a deadline for defendants' determination of whether the Bonnichsen plaintiffs' request to study the skeleton will be granted, and will deem these plaintiffs' request to study to have been denied if the decision is not made by that time.
In determining the appropriate deadline for responding to the Bonnichsen plaintiffs' study request, I note that defendants have indicated that radiocarbon analysis will be completed by early November 1999. I also note that, though the one to two years that defendants assert is needed to complete this task is excessive, some time probably will be needed to complete a cultural affiliation study. I also note that DNA analysis probably will be required to determine if there are any links between the remains and present-day Native Americans, given the apparent age of the skeleton, the destruction of the site where the remains were discovered, and the apparent absence of cultural artifacts preserved with the remains. Clark Spencer Larsen, defendants' own expert, has stated that
Native Americans have highly distinctive patterns of mtDNA that could potentially be identified in the Kennewick remains.... I regard [DNA] analysis as conclusive and essential for determining ancestry and individual identification. Like the radiocarbon analysts,' this should be completed early on in the investigation of the Kennewick skeletal remains.Larsen Report, p. 8. Given that any decision that did not include DNA analysis would probably be challenged as arbitrary and capricious, I will allow defendants the time needed to carry out this testing, if they so choose. Based upon the affidavit. before the court and the representations of counsel during the September 14, 1999 hearing, I conclude that six months is sufficient time for completing the radiocarbon analysis, DNA testing, cultural affiliation assessment, and any other studies that defendants may conclude are necessary in order to formulate an agency response to the Bonnichsen plaintiffs' request to study. Therefore, defendants will be allowed until March 24, 2000, to respond to the Bonnichsen plaintiffs' study request.
The motion for an immediate reply to the Bonnichsen plaintiffs' study request (#208-1) is DENIED, and the alternative motion for an order construing defendants' delay as a denial of this request (#208-2) is GRANTED in part and DENIED in part. Defendants shall respond by March 24, 2000, to the Bonnichsen plaintiffs' request to study the skeleton. If defendants have not responded by that date, they will be deemed to have denied the Bonnichsen plaintiffs' study request.
Dated this 21st day of September, 1999.
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