Bonnichsen v. U.S., Dept. of Army

• Decision Date: 27 June 1997
• Docket Number: Civil No. 96-1481-JE.,Civil No. 96-1516-JE.
• Citation: 969 F.Supp. 628
• Parties: 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.
• Court: U.S. District Court — District of Oregon

969 F.Supp. 628

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.

Civil No. 96-1481-JE.

Civil No. 96-1516-JE.

United States District Court, D. Oregon.

June 27, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Alan L. Schneider, Portland, OR, Paula A. Barran, Dian S. Rubanoff, Lane, Powell, Spears & Lubersky, Portland, OR, for Plaintiffs in No. 96-1481.

Michael T. Clinton, Portland, OR, for Plaintiffs in No. 96-1516.

Lois J. Schiffer, Assistant Attorney General, Daria J. Zane, U.S. Department of Justice, Environmental & Natural Resources Div., General Litigation Section, Washington, DC, Kristine Olson, U.S. Attorney District of Oregon, Tim Simmons, Assistant U.S. Attorney, Portland, OR, for Defendants.

David J. Cummings, Douglas Nash, Nez Perce Tribal Executive Committee, Office of Legal Counsel, Lapwai, ID, for Amicus Curiae Nez Perce Tribe and Confederated Tribes of the Umatilla Indian Reservation.

JELDERKS, United States Magistrate Judge:

The focal point for this controversy is a set of human remains, believed to be over 9000 years old, that were discovered in 1996 near Kennewick, Washington, along the bank of the Columbia River.¹ The facts and procedural history of this case are detailed at length in a prior opinion filed on February 19, 1997. Following oral argument on June 2, 1997, I issued several rulings from the bench. The present opinion is intended to supplement and amplify those bench rulings, and to provide additional guidance to the defendants so that this controversy may be resolved in a timely and orderly manner.

The Parties

The Bonnichsen plaintiffs are scientists who contend the discovery is of great historical and anthropological significance and want to study the remains. Defendant Army Corps of Engineers concluded that the remains were subject to the Native American Graves Protection and Repatriation Act ("NAGPRA"), Pub.L. 101-601, 25 U.S.C. § 3001, et seq. The Corps therefore decided to transfer the remains to an Indian tribe for reburial, and forbade scientific study of the remains. The Bonnichsen plaintiffs filed suit to halt the transfer and to enforce what they contend is a legal right to study the remains. The Asatru plaintiffs are members of the Asatru Folk Assembly. which is described in their complaint as a legally-recognized church "that represents Asatru, one of the major indigenous, pre-Christian, European religions." The Asatru plaintiffs contend that the remains are actually of European descent, and seek custody of the remains for study and "for eventual reinterment in accordance with native European belief." The Nez Perce Tribe and the Confederated Tribes of the Umatilla Indian Reservation have appeared as amicus curiae. According to the brief filed by amici:

The amici tribes' traditional beliefs and practices teach them that they have an inherent responsibility to care for those who are no longer alive. When a body goes into the ground, it is meant to stay there until the end of time. When remains are disturbed and remain above the ground, their spirits are at unrest. Handling human remains, the scientific study of human remains, and particularly the destructive study of humans remains are extremely sensitive issues to the amici tribes. To put these spirits at ease, the remains must be returned to the ground as soon as possible. These beliefs teach the amici tribes to treat those who they share this life with and those who have left them to become a part of the Earth with the utmost respect. The amici tribes have requested the United States Army Corps of Engineers to respect those beliefs.

Joint Tribal Amici Memorandum at 4-5 (internal citations omitted). The amici tribes have opposed plaintiffs' request for permission to study the remains.

Presently before the court are defendants' motion for summary judgment and the plaintiffs' motions for an order allowing them to immediately study the remains. Some of the issues presented in this case are questions of first impression that have not previously been addressed by any court in a published opinion.²

For the reasons set forth below, I deny defendants' motion for summary judgment. I conclude that plaintiffs have standing to maintain this action, and that this action has not been mooted. I also conclude that the prior decisions by the Corps of Engineers concerning these remains should be vacated (to the extent those decisions have not already been withdrawn by the agency), and the matter should be remanded to the Corps for further consideration. At the end of this opinion I have included a non-exclusive list of questions that I would like the Corps to consider on remand. This action will be stayed pending completion of the administrative proceedings. The court will retain jurisdiction over this matter. The Corps will maintain custody of the remains until this case is resolved. Plaintiffs' request for permission to study the remains while this action is pending is denied without prejudice. That request should be considered by the Corps on remand along with the other issues.

Defendants' Motion for Summary Judgment

1. Standing:

Defendants contend the plaintiffs have no standing to maintain this action. Although there are two sets of plaintiffs (Bonnichsen and Asatru), the parties have focused upon the question of whether the Bonnichsen plaintiffs have standing. I therefore will do the same, unless otherwise noted.

a. Legal Standards:

The question of standing "involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The "constitutional limitations" are those that are necessary to satisfy Article III's requirement of a "case" or "controversy," without which this court lacks jurisdiction. By contrast, "prudential limitations" are "judicially self-imposed limits on the exercise of federal jurisdiction," Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984), that are "founded in concern about the proper — and properly limited — role of the courts in a democratic society." Warth, 422 U.S. at 498, 95 S.Ct. at 2205.

To satisfy the "case" or "controversy" requirement of Article III, which is the "irreducible constitutional minimum" of standing, a plaintiff must, generally speaking, demonstrate that:

(1) he or she has suffered (or is about to suffer) an "injury in fact": an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical;

(2) there must be a causal connection between the injury and the conduct complained of: the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and

(3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2135-37, 119 L.Ed.2d 351 (1992). Plaintiffs, as the party invoking federal jurisdiction, bear the burden of establishing these elements. Id. at 561, 112 S.Ct. at 2136-37.

Defendants correctly observe that, on a motion for summary judgment, standing is not automatically presumed from the allegations of the complaint but is "an indispensable part of the plaintiff's case" that "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof." Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. at 2136. As a practical matter, however, if — in order to have standing — the plaintiff must prove that he has in fact been injured by this defendant, and that he is entitled to the relief sought, then the court would be obliged to try the entire case just to resolve the threshold question of whether the plaintiff even has standing to maintain the action.

For that reason, when deciding whether the plaintiff has standing to maintain an action, the court ordinarily will assume that it has the ability to grant the relief that the plaintiff seeks. The court also will assume the truth of the evidence proffered by the plaintiff, at least where those factual issues are inseparable from the merits of the case itself. Cf. Winter v. Calif. Medical Review Inc., 900 F.2d 1322, 1324 (9th Cir.1990) (the district court may hear evidence on jurisdictional questions and resolve factual disputes regarding that jurisdictional issue to the extent such disputes are separable from the merits of the case itself).

b. Analysis:

Defendants have cited the Supreme Court's decision in Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, to support their contention that plaintiffs do not have standing. In Defenders of Wildlife, the plaintiffs sought a declaration that the Endangered Species Act requires federal agencies to consult with the U.S. Fish and Wildlife Service regarding any activities outside of the United States that those agencies fund or otherwise assist that may adversely impact endangered species. However, the plaintiffs were unable to establish that they personally had been (or were about to be) injured by the government's failure to conduct such consultations.

One of the Defenders of Wildlife plaintiffs had previously traveled to Egypt and observed the traditional habitat of the endangered nile crocodile there, and hoped to do so again in the future. She feared that the crocodile's habitat might be harmed by...