Bonnichsen v. U.S., Dept. of the Army, No. 96-1481-JE.

CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)
Writing for the CourtJelderks
Citation969 F.Supp. 614
PartiesRobson BONNICHSEN, C. Loring Brace, George W. Gill, C. Vance Haynes, Richard L. Jantz, Douglas W. Owsley, Dennis J. Stanford, and D. Gentry Steele, Plaintiffs, v. UNITED STATES of America, DEPARTMENT OF THE ARMY, U.S. Army Corps of Engineers, Bartholomew B. Bohn II, Donald R. Curtis, and Lee Turner, Defendants. ASATRU FOLK ASSEMBLY, Stephen A. McNallen, William Fox, Plaintiffs, v. UNITED STATES of America, DEPARTMENT OF THE ARMY, U.S. Army Corps of Engineers, Ernest J. Harrell, Donald R. Curtis, and Lee Turner, Defendants.
Decision Date19 February 1997
Docket NumberNo. 96-1516-JE.,No. 96-1481-JE.
969 F.Supp. 614
Robson BONNICHSEN, C. Loring Brace, George W. Gill, C. Vance Haynes, Richard L. Jantz, Douglas W. Owsley, Dennis J. Stanford, and D. Gentry Steele, Plaintiffs,
v.
UNITED STATES of America, DEPARTMENT OF THE ARMY, U.S. Army Corps of Engineers, Bartholomew B. Bohn II, Donald R. Curtis, and Lee Turner, Defendants.
ASATRU FOLK ASSEMBLY, Stephen A. McNallen, William Fox, Plaintiffs,
v.
UNITED STATES of America, DEPARTMENT OF THE ARMY, U.S. Army Corps of Engineers, Ernest J. Harrell, Donald R. Curtis, and Lee Turner, Defendants.
No. 96-1481-JE.
No. 96-1516-JE.
United States District Court, D. Oregon.
February 19, 1997.

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Alan L. Schneider, Portland, OR, George L. Kirklin, Paula A. Barran, Lane Powell Spears Lubersky, Portland, OR, for Plaintiffs.

Daria J. Zane, U.S. Department of Justice, Environment & Natural Resources Division, General Litigation Section, Washington, DC, Kristine Olson, U.S. Attorney, Dist. of Oregon, Tim Simmons, Assistant U.S. Attorney, Portland, OR, for Defendants.

OPINION

JELDERKS, United States Magistrate Judge.


In July 1996, a skeleton was found along the Columbia River in Benton County, Washington. The coroner and local police were notified, and the skeleton removed. Several forensic anthropologists briefly examined the remains. Their preliminary examinations raised more questions than they answered about the ethnic background of that individual.1 Radiocarbon testing was then performed. The results indicated that the skeleton is of a man who walked the earth more than 9000 years ago.

The discovery attracted considerable attention from the media, which called the skeleton "Richland Man" or "Kennewick Man" (both terms referring to cities in the area near where the remains were found).

Soon afterwards, the Army Corps of Engineers (the "Corps") took custody of the remains.2 On or about September 17, 1996, the

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Corps published in a local newspaper a "Notice of Intent to Repatriate Human Remains." The Notice stated, in relevant part, that (1) the notice of repatriation was being issued pursuant to the Native American Graves Protection and Repatriation Act, 25 U.S.C. § 3005(a) ("NAGPRA"), (2) the Corps had determined that the remains were of Native American ancestry, (3) the Corps had determined that the remains had been inadvertently discovered on federal land recognized as the aboriginal land of an Indian tribe, (4) the Corps had determined that there is a relationship of shared group identity which can be reasonably traced between the human remains and five Columbia River basin tribes and bands, (5) that the Corps intended to repatriate3 the remains to those tribes, (6) that notice had been given to certain Indian tribes, (7) that "[r]epresentatives of any other Native American Tribe which believes itself to be culturally affiliated with these human remains should contact the Corps of Engineers prior to October 23, 1996," and (8) that repatriation may begin after this date if no additional claimants come forward.

In the days following publication of the Notice of Intent, several scientists wrote the Army Corps of Engineers to protest the decision to repatriate the remains. These scientists argued that the discovery of a well-preserved skeleton of this antiquity in North America represented a "rare discovery of national and international significance" that could shed considerable light on the origins of humanity in the Americas. The scientists believed — and defendants have not disputed — that following repatriation the remains would be buried in an undisclosed location and no further examination or study of the remains would be possible. The scientists also questioned whether, in light of the estimated age of the remains and the preliminary reports from the forensic anthropologists, the remains were those of a Native American, or could be linked to any modern Native American peoples.4

The scientists asked the Corps of Engineers to reconsider its decision to repatriate the remains. The Corps did not respond to these letters.5 With the deadline for repatriation imminent, a group of scientists (the Bonnichsen plaintiffs) filed suit seeking a temporary restraining order to halt the repatriation. The Bonnichsen plaintiffs demanded a detailed scientific study to determine the origins of the man before the Corps decided whether to repatriate the remains. The Bonnichsen plaintiffs also sought to enjoin alleged violations of NAGPRA, to declare the agency actions at issue null and void, and for an injunction to prevent defendants from "depriving plaintiffs from access to Richland Man."

A second action was filed by members of the Asatru Folk Assembly (the Asatru plaintiffs), which is described in the complaint as a legally-recognized church "that represents Asatru, one of the major indigenous, pre-Christian, European religions." The Asatru plaintiffs contend that the man is actually one of their ancestors, and is not related to present-day Native Americans at all but rather to Europeans. The Asatru plaintiffs want this court to set aside the decision of the Corps to repatriate the remains, and to compel the Corps to allow scientific testing of

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the remains to determine his origins and which contemporary populations he is most closely associated with. If the remains prove to be of European origin, the Asatru plaintiffs want custody of the remains for study and "for eventual reinterment in accordance with native European belief." Both sets of plaintiffs also assert challenges to the constitutionality of NAGPRA and to the legality of various actions taken by the Corps.

On October 23, 1996, this court held a hearing on the request for a temporary restraining order. Defendants agreed to give plaintiffs at least 14 days notice prior to repatriation so plaintiffs could seek relief from this court. The court issued an order consistent with that agreement.

Defendants now move to dismiss both actions, asserting that the clains are not ripe, plaintiffs have failed to exhaust their remedies, plaintiffs have failed to state a claim, and that the claims are barred by sovereign immunity. Since the complaints, motions, and briefs in each case are very similar, I will treat them as one motion for purposes of this opinion except where there is a need to distinguish between the two complaints.

STANDARDS

Two different standards govern the motions to dismiss in this case. Defendants' motion to dismiss for failure to state a claim challenges the legal sufficiency of the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Because the court rules before it receives any evidence, such motions are disfavored. 5A C. Wright & A. Miller, Federal Practice and Procedure § 1357 (1984). For purposes of the motion, the factual allegations in the complaint are presumed to be true, and are viewed in the light most favorable to the nonmoving party. Cassettari v. County of Nevada, 824 F.2d 735, 737 (9th Cir.1987). A motion to dismiss under Rule 12(b)(6) will be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir.1986), cert. den., 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987). The question is not whether the plaintiff ultimately will prevail, but whether he cannot possibly prevail even if the allegations in the complaint are assumed to be true. The court may not dismiss a claim merely because the pleadings indicate that the likelihood of prevailing is remote. See Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686. Nor, at this stage of the proceedings, does the court consider whether there is any evidence to support the allegations that have been made in the complaint.

A different standard of review applies to defendants' motion to dismiss on grounds of ripeness or failure to exhaust administrative remedies. Since the motion is not directed at the merits of the controversy but to the court's jurisdiction to hear the controversy, the district court may hear evidence on the jurisdictional question and resolve any factual disputes regarding that jurisdictional issue to the extent such disputes are separable from the merits of the case itself. Winter v. Calif. Medical Review, Inc., 900 F.2d 1322, 1324 (9th Cir.1990); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Unlike a motion to dismiss for failure to state a claim, the court is not required to assume the truth of the jurisdictional allegations proffered by the plaintiffs. However, the court's ruling is limited to the question of whether it has jurisdiction over the controversy. A determination that the court has (or does not have) jurisdiction over the case is not an opinion on the merits of the claims asserted in that case.

DISCUSSION

1. Ripeness and exhaustion:

Defendants contend the issues are not ripe for judicial review because they did not make any final decision, and because plaintiffs have not exhausted their administrative remedies. I disagree.

Ripeness is "a question of timing." Regional Rail Reorganization Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 357, 42 L.Ed.2d 320 (1974). There are several principles that shape the doctrines of ripeness and exhaustion. First, the courts ordinarily will review only a final agency action so as not to interfere with the agency's decision-making process.

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Dietary Supplemental Coalition, Inc. v. Sullivan, 978 F.2d 560, 562 (9th Cir.1992). However, this finality element must be interpreted in a "pragmatic" and "flexible" manner. Id. Cf. Seattle Audubon Society v. Espy, 998 F.2d 699, 703 (9th Cir.1993) (challenge to spotted owl management plan was ripe notwithstanding that no specific timber sale had yet been approved pursuant to the plan); Friends of the Wild Swan, Inc. v. United States Forest Service,...

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6 practice notes
  • Bonnichsen v. U.S., No. 02-35994.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 4, 2004
    ...disputed issue in this appeal. 4. The district court has issued three published opinions in this case. See Bonnichsen v. United States, 969 F.Supp. 614 (D.Or. 1997) (denying Defendants' motion to dismiss based on failure to state a claim and ripeness grounds) (Bonnichsen I); Bonnichsen v. U......
  • Bonnichsen v. U.S., No. 02-35994.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 4, 2004
    ...disputed issue in this appeal. 4. The district court has issued three published opinions in this case. See Bonnichsen v. United States, 969 F.Supp. 614 (D.Or.1997) (denying Defendants' motion to dismiss based on failure to state a claim and ripeness grounds) (Bonnichsen I); Bonnichsen v. Un......
  • Bonnichsen v. U.S., Civil No. 96-1481-JE.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • August 30, 2002
    ...later moved to dismiss this lawsuit. In an Opinion issued February 19, 1997, I denied the motion. Bonnichsen v. United States, 969 F.Supp. 614 (D.Or. Defendants then moved to dismiss this lawsuit on the grounds that Plaintiffs lacked standing to maintain this action, that the claims were no......
  • San Carlos Apache Tribe v. U.S., No. CV 99-255 TUC DCB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • July 9, 2003
    ...103 F.3d 936, 939 (10th Cir.1996) (jurisdiction for suit provided by statute); see Bonnichsen v. United States Dept. of the Army, 969 F.Supp. 614, 627 (D.Or.1997) (explaining that this language is a clear expression of Congress' intent to establish a right to declaratory and injunctive reli......
  • Request a trial to view additional results
6 cases
  • Bonnichsen v. U.S., No. 02-35994.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 4, 2004
    ...disputed issue in this appeal. 4. The district court has issued three published opinions in this case. See Bonnichsen v. United States, 969 F.Supp. 614 (D.Or. 1997) (denying Defendants' motion to dismiss based on failure to state a claim and ripeness grounds) (Bonnichsen I); Bonnichsen v. U......
  • Bonnichsen v. U.S., No. 02-35994.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 4, 2004
    ...disputed issue in this appeal. 4. The district court has issued three published opinions in this case. See Bonnichsen v. United States, 969 F.Supp. 614 (D.Or.1997) (denying Defendants' motion to dismiss based on failure to state a claim and ripeness grounds) (Bonnichsen I); Bonnichsen v. Un......
  • Bonnichsen v. U.S., Civil No. 96-1481-JE.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • August 30, 2002
    ...later moved to dismiss this lawsuit. In an Opinion issued February 19, 1997, I denied the motion. Bonnichsen v. United States, 969 F.Supp. 614 (D.Or. Defendants then moved to dismiss this lawsuit on the grounds that Plaintiffs lacked standing to maintain this action, that the claims were no......
  • San Carlos Apache Tribe v. U.S., No. CV 99-255 TUC DCB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • July 9, 2003
    ...103 F.3d 936, 939 (10th Cir.1996) (jurisdiction for suit provided by statute); see Bonnichsen v. United States Dept. of the Army, 969 F.Supp. 614, 627 (D.Or.1997) (explaining that this language is a clear expression of Congress' intent to establish a right to declaratory and injunctive reli......
  • Request a trial to view additional results

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