Yankton Sioux Tribe v. U.S. Army Corps of Eng., CIV. 02-4126.

• Decision Date: 28 June 2002
• Docket Number: No. CIV. 02-4126.,CIV. 02-4126.
• Citation: 209 F.Supp.2d 1008
• Parties: YANKTON SIOUX TRIBE, and its individual members, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS; Thomas E. White, Secretary of the Army; Dominic Izzo, Principal Deputy Assistant Secretary of the Army for Civil Works; Robert E. Flowers, Chief of Engineers; Curt F. Ubbelohde, Omaha District Commander and District Engineer; The United States of America; The State of South Dakota; John Cooper, Secretary of the Department of Game, Fish and Parks for the State of South Dakota; and John Does, Contractors, Defendants.
• Court: U.S. District Court — District of South Dakota

209 F.Supp.2d 1008 YANKTON SIOUX TRIBE, and its individual members, Plaintiffs,
v.
UNITED STATES ARMY CORPS OF ENGINEERS; Thomas E. White, Secretary of the Army; Dominic Izzo, Principal Deputy Assistant Secretary of the Army for Civil Works; Robert E. Flowers, Chief of Engineers; Curt F. Ubbelohde, Omaha District Commander and District Engineer; The United States of America; The State of South Dakota; John Cooper, Secretary of the Department of Game, Fish and Parks for the State of South Dakota; and John Does, Contractors, Defendants. No. CIV. 02-4126. United States District Court, D. South Dakota, Southern Division. June 28, 2002.

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Mary Turgeon Wynne, Okanogan, WA, for plaintiffs.

Bonnie P. Ulrich, U.S. Attorney's Office, Sioux Falls, SD, John P. Guhin, Attorney General's Office, Pierre, SD, for defendants.

MEMORANDUM OPINION AND ORDER

PIERSOL, Chief Judge.

The Court orally granted, in part, plaintiffs Yankton Sioux Tribe, a federally recognized Indian Tribe, and its individual members' motion for a temporary restraining order pursuant to Federal Rule of Civil Procedure 65 on June 11, 2002, followed by a written Order issued on June 14, 2002. Pursuant to the parties' stipulation, the temporary restraining order is in effect until June 28, 2002. Pending before the Court are plaintiffs' motions for preliminary injunction, Docs. 8 and 22. The parties submitted simultaneous briefs addressing the request for preliminary injunction as stated in plaintiffs' first motion, Doc. 8. A second motion, Doc. 22, was filed at the same time as the briefs. Thus, the defendants have not had an opportunity to specifically respond to the second motion.

Generally, plaintiffs seek a preliminary injunction ordering the defendants to restrain immediately and pending final hearing and determination of this action from taking any action to further destroy a burial site located at an area known as the North Point Public Recreation Area ("North Point") near Pickstown, South Dakota, which was discovered on May 14, 2002. Among other claims, plaintiffs allege in their Amended Complaint that defendants have violated the Native American Grave Protection and Repatriation Act, 25 U.S.C. § 3001 et seq. ("NAGPRA")¹, by: (1) removing Native American

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human remains from the burial ground without notice, consultation or consent by plaintiffs or obtaining a permit under the Archeological Resources Protection Act of 1979 ("ARPA"), 16 U.S.C. § 470aa et seq., in violation of 25 U.S.C. § 3002(c); (2) the continued operation of heavy equipment and other activities at location A after the inadvertent discovery of human remains, funerary objects, and sacred objects, thereby violating the 30-day cessation-of-activity requirement imposed by 25 U.S.C. § 3002(d)(1); (3) failure to secure the burial ground and protect human remains and funerary objects after discovery in violation of 25 U.S.C. § 3002(d); and (4) failure to give the required notice of subsequent discoveries of human remains and funerary objects after a May 24, 2002 letter authored by an official of the State of South Dakota. (Amended Complaint, Doc. 9, ¶¶ 110-124.)

The Court held a hearing on the motion for temporary restraining order on June 7, 10 and 11, 2002. Several witnesses testified during the hearing and their testimony has been considered in deciding whether to impose a preliminary injunction. See Fed.R.Civ.P. 65(a)(2).

On June 11, 2002 an oral order was issued and on June 14, 2002 a written temporary restraining order was issued directing that John Cooper, in his official capacity as the Secretary of the Department of Game, Fish and Parks for the State of South Dakota, and his officers, agents, servants, employees, attorneys, and persons in active concert or participation with him who received actual notice of the temporary restraining order by personal service or otherwise, temporarily restrain from: (a) conducting any excavation, building or other construction activities at the North Point Recreation Area locations marked as "A," "B," and "C" on the map attached to the Order; and (b) excluding any member of the Tribe who, for religious purposes, requests access to the North Point Recreation Area locations marked as "A," "B," and "C" on the map attached to the Order.

In the first motion for preliminary injunction, Doc. 8, plaintiffs seek an order requiring defendants to: (1) take reasonable actions to protect said burial site and all sites where dirt was removed from the North Point burial site and transferred to another site; (2) order the defendant to allow plaintiffs' unimpeded access to the sites for completion of customary and traditional rituals and burial rites; and (3) order the immediate return and repatriate of any remains, funerary objects, human remains and all other objects removed from the North Point burial site in cooperation with the plaintiffs.

In the second motion for preliminary injunction, Doc. 22, plaintiffs seek an order requiring defendants to: (1) restrain from excavation, operation of heavy equipment, movement of dirt and gravel, or any other construction activities within 500 feet of and at locations A, B and C and any other North Point area where dirt from location A was deposited; (2) protect on site all burial grounds, human remains, funerary objects, archeological objects and culturally significant objects at locations A, B and C, to include fencing and guarding, but excluding removal of any remains or objects without completing the requirements of 25 U.S.C. § 3002(d) and 43 C.F.R. §§ 10.4(d)(1), 10.3(b), 10.5 and 10.6; (3) restrain from impeding or limiting plaintiffs' access to the North Point area for the purpose of traditional religious or ceremonial activities; (4) examine all dirt removed from location A for the presence of human remains, funerary objects and items of cultural patrimony in a method respectful of the traditions and customs of the Yankton Sioux Tribe (hereinafter "the Tribe"); (5)

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return to location A all human remains removed from that location on May 20 and 23, 2002, in cooperation with the Tribe and protect the remains on site while completing any further repatriation, consultation, notification and certification processes pursuant to NAGPRA; (6) require defendants to complete the consultation, notification and certification processes required by NAGPRA and the statutes incorporated into NAGPRA, specifically 25 U.S.C. § 3002(d) and 43 C.F.R. 10.4(d)(1), 10.3(b), 10.5 and 10.6; and (7) protect on site any remains located at North Point until compliance with NAGPRA has been demonstrated by defendants.

Although the Amended Complaint is not verified, it is supported by the affidavits attached to the original complaint, as required by Rule 65(b). The Court has considered the allegations of the Amended Complaint and the affidavits and exhibits attached to the original complaint. During the hearing on the motion for temporary restraining order the following witnesses testified: Faith Spotted Eagle, Ellsworth Chytka, Robert Cournoyer, Sr., Glenn Drapeau, Sandra Barnum, Richard Adamson, Larry Janis, Jon Corey, Michael Fosha, and Eric Adamson. The Court received plaintiffs' Exhibits 1-6 and defendants' Exhibits A-N². All parties filed additional documentation in support of their briefs on the preliminary injunction, which has been considered by the Court. Having carefully considered the issues and evidence presented and having considered the briefs of all parties, the Court will impose a preliminary injunction pursuant to Fed.R.Civ.P. 65(d).

FACTUAL BACKGROUND

The record reflects that the State of South Dakota is further developing North Point to add approximately 100 more camping spots, as well as new roads, comfort stations, parking lots, and dumping stations. This is a major construction project and the State has hired several contractors to perform various tasks. One of the contractors performing dirt work at North Point is Adamson Construction, owned and operated by Richard Adamson. Adamson, along with four employees, has been working at North Point from late April 2002 to the present. There has been no showing, however, that Adamson has worked in any prohibited area at North Point after the Court entered its oral Order on June 11, 2002.

Eric Adamson, an employee of Adamson Construction and Adamson's son, was operating a front-end loader on May 14, 2002 when he observed some bones in the dirt he was removing. Eric stopped working and Adamson was called to the site. Upon seeing the bones and artifacts uncovered by Eric, Adamson directed Eric to stop digging and moving dirt. Adamson then immediately notified the Park Supervisor for North Point, Jon Corey. Corey directed Adamson and Eric to stop work for the day. Corey called Bob Schneider, an official of the South Dakota Department of Game, Fish and Parks ("GFP"), and Schneider visited the site. Schneider called the United States Army Corps of Engineer's ("the Corps") archeologist, Sandra Barnum, on the morning of May 15, 2002 and informed her that bones were uncovered at North Point. On May 15, 2002, it was unknown whether the bones were animal or human remains. Barnum called Corey and directed him to not allow any excavation within 100 yards of the uncovered bones, to collect the artifacts and to cover the bones with loose dirt.

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Corey collected two tin bowls and a leather strap and placed these artifacts in his office and covered the bones as directed by Barnum. Adamson, as well as his employees, complied with Barnum's directions to not excavate within 100 yards of the bones.

The site where the remains were inadvertently discovered is identified on a map attached to an Affidavit of Doug Hofer, Doc. 7. The map also identifies two locations where dirt from the burial site and surrounding areas was placed before and after the discovery. For ease of reference in this opinion, the Court will attach and incorporate a copy of...