Scientists' July 1, 2000 Status Report to the Court
Alan L. Schneider, OSB No. 68147
1437 SW Columbia Street, Suite 200
Portland, Oregon 97201
Telephone: (503) 274-8444
Facsimile: (503) 274-8445
Paula A. Barran, OSB No. 80397
BARRAN LIEBMAN LLP
E-mail: pbarran@barran.com
601 SW Second Ave., Suite 2300
Portland, Oregon 97204-3159
Telephone: (503) 228-0500
Facsimile: (503) 274-1212
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBSON BONNICHSEN, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, et al.,
Defendants. CV No. 96-1481 JE
PLAINTIFFS' JULY 1, 2000 STATUS REPORT
Plaintiffs, state the following for their July 1, 2000 Status
Report:
1. Request for Status Conference on Yakama Request
(if Granted)
The Court has advised the parties it will consider the Motion
to Intervene filed on behalf of the Yakama Nation during the
week of July 3, 2000. As plaintiffs have previously stated,
they will not oppose the motion to intervene. If the Yakama
Nation truly believes that their interests are not being adequately
represented by the federal defendants, their rejoinder in this
case may be appropriate. However, if intervention is allowed,
plaintiffs request that the Court schedule a status conference
at the earliest convenient date. Plaintiffs believe that such
a conference would be proper because it would give the Court
an opportunity to consider issues that the Yakama Nation has
not adequately addressed, or at least to identify issues to be
considered at a later time when the stay is lifted. The Advisory
Committee Notes to Fed. R. Civ. P. 24 as well as decisions on
intervention make clear that intervention (even where intervention
is as of right) may e subject to conditions or restrictions which
a court may impose inter alia in the interests of the efficient
resolution of a controversy. They may include restricting discovery
rights, limiting issues upon which an intervenor may be heard,
and limiting the extend to which claims or counterclaims may
be asserted. Issues that should be considered in this regard
include the following:
a. How will any intervenors be aligned?
The Yakama Nation have asked to intervene as a party defendant.
That does not appear to plaintiffs to be proper. Any interest
the Yakama Nation may have in this case rises, and falls, with
what the government does or does not do with their claims to
the skeleton. The Yakama Nation are more properly aligned as
a plaintiff, not a defendant. Plaintiffs have not asserted any
claims against the Yakama Nation. Plaintiffs are agreeing that
the government's process is flawed. Accordingly, they should
be suing the government, not plaintiffs. The skeleton is under
federal lock and key. What happens to it is up to the government,
not plaintiffs.
b. What are the issues on which the Yakama Nation may
be heard?
This case is already 3-1/2 years old and there have been a number
of motions and Court rulings. Aside from the assertion that
the Yakama Nation has claimed the skeleton under NAGPRA, the
Nation has not adequately identified the issues it wants to address.
The intervenor is normally bound by all prior orders and adjudications
and there have been many in this matter already, and the Court
may properly limit the issues on which the intervenor may participate.
c. What safeguards may be erected to ensure that the intervention
does not unduly delay the litigation?
Adding a new party at this late date has the potential to interfere
with Court deadlines which were set after many months, even years
of litigation. Plaintiffs believe that intervening after so
many years should not be permitted to become a reason for additional
delays and hope the Court will address that issue. The Court
has an interest in the just and expeditious adjudication of this
aging controversy and may impose reasonable conditions or restrictions
on the extent of the intervenor's participation.
d. What safeguards may be erected to ensure that the intervention
does not unfairly expand the litigation?
The Yakama Nation has proposed filing pleadings as if it
were a defendant, which assert a claim of sorts against plaintiffs.
Plaintiffs ask the Court to address whether the Yakama Nation
by intervening can require plaintiffs to address new claims,
new theories, and engage in broad far ranging discovery that
could take this case into areas far removed from the issues germane
to plaintiffs' original claims against the government. Plaintiffs
believe that addressing the proper alignment of any intervenor
can productively be done in a status conference.
e. Must other claimants for the skeleton be joined as
intervenors as well?
Plaintiffs believe that proper alignment of any intervenors may
help simplify issues that can arise given that the Yakama Nation
has not identified other claimants to the skeleton, even though
it is known that there are others. Plaintiffs wonder whether
those other claimants should also be joined if one claimant has
now sought to intervene.
f. Will the Yakama Nation's proposed pleading be accepted
and, if it is, when are plaintiffs to respond?
The Yakama Nation has proposed a pleading which plaintiffs believe
is improper. It represents the claim the Yakama Nation has submitted
to the government and which they now wish to assert in this litigation
because its proponents appear to have become disenchanted with
the Government. If it is to be filed as is, asserting claims
against plaintiffs, plaintiffs wish to file a motion under Fed.
R. Civ. P. 112 because it is wrongly done. But since this case
is presently stayed, they believe the Court can address this
issue in a status conference.
2. Plaintiffs' information requests.
Plaintiffs have nothing new to report to the Court concerning
the status of the skeleton or federal defendants' administrative
proceedings. Plaintiffs' only knowledge concerning these matters
comes from the documents that defendants have filed with the
Court. Plaintiffs have attempted, without success, to obtain
the following from defendants:
a) Copies of the x-rays and CT scans taken by defendants of
the skeleton's cranium and of the portion of the hip bone containing
the projectile point;
b) Copies of any reports relating to cultural affiliation of
the skeleton;
c) Data on the amounts of bone samples returned by the radiocarbon
laboratories after completion of their dating tests;
d) Copies of any condition assessment reports prepared by defendants'
conservators following their visit of May 17-19, 2000;
e) A copy of Dr. Smith's list of the individuals who handled
or who were in contact with the skeleton, and the conditions
under which the contacts were made;
f) An electronic copy of the raw computer data used to generate
the CT scans performed for the government;
g) A copy of any videotapes or audio tapes that record the removal
of samples from the skeleton for radiocarbon dating or chemical
testing;
h) References supporting Dr. Trimble's assertions concerning
damage to osteological collections used for student teaching
(plaintiffs note that these are situations not typical of the
Kennewick skeleton).
Dated this 29th day of June, 2000.
By__________________________
Alan L. Schneider, OSB #68147
Telephone: (503) 274-8444
Attorneys for Plaintiff
BARRAN LIEBMAN LLP
(signed)
By_______________________
Paula A. Barran, OSB No. 80397
Telephone: (503) 228-0500
Attorneys for Plaintiffs
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