Full opinion text
OPINION AND ORDER JELDERKS, United States Magistrate Judge. Plaintiffs bring this action seeking judicial review of a final agency decision that awarded the remains of the “Kennewick Man” to a coalition of Indian tribes and denied the Plaintiffs’ request to study those remains. Plaintiffs assert other claims based upon alleged statutory violations. Plaintiffs seek to vacate the administrative decision which was made after an earlier decision was remanded to the agency for further proceedings. For the reasons set out below, I set aside the decision awarding the remains to the Tribal Claimants, enjoin transfer of the remains to the Tribal Claimants, and require that Plaintiffs be allowed to study the remains. Plaintiffs’ request for other relief is granted in part and denied in part. PARTIES The Plaintiff scientists are highly regarded experts in their fields. Plaintiff Bonnichsen is Director of the Center for the Study of the First Americans at Oregon State University. Plaintiff Brace is Curator of Biological Anthropology at the University of Michigan Museum of Anthropology. Plaintiffs Gill, Haynes, Jantz, and Steele are anthropology professors. Plaintiff Owsley is division head for physical anthropology at the Smithsonian Institution’s National Museum of Natural History. Plaintiff Stanford is Director of the Smithsonian’s Paleo Indian Program. The Defendants are the Army Corps of Engineers, the United States Department of the Interior, the Secretary of the Interi- or, and other federal officials. Amici curiae have also participated. I. BACKGROUND A. Pre-Litigation Events In July 1996, a human skull and scattered bones were discovered in shallow water along the Columbia River near Kennewick, Washington. The remains were found on federal property under the management of the United States Army Corps of Engineers (Corps), and were removed pursuant to an Archeological Resources Protection Act (ARPA) permit dated July 30, 1996. Local anthropologists who examined the find at the request of the county coroner initially believed the remains were of an early European settler or trapper, based upon physical features such as the shape of the skull and facial bones, and certain objects which were found nearby. However, the anthropologists then observed a stone projectile point (aka “lithic object”) embedded in the ilium (i.e., upper hip bone). The object’s design, when viewed with x-rays and CT scans of the hip, resembled a style that was common before the documented arrival of Europeans in this region. Further examination of the remains revealed characteristics inconsistent with those of a European settler, yet also inconsistent with any American Indian remains previously documented in the region. To resolve this ambiguity, a minute quantity of metacarpal bone was radiocarbon dated. The laboratory initially estimated that the sample was between 9265 and 9535 calendar years old, COE 8715, but later adjusted that estimate to between 8340 and 9200 calendar years old after factoring in several corrections. COE 4030, DOI 10023. Human skeletons this old are extremely rare in the Western Hemisphere, and most found to date have consisted of very fragmented remains. Here, by contrast, almost 90% of this man’s bones were recovered in relatively good condition, making “Kennewick Man” — as he was dubbed by the news media — “one of the most complete early Holocene human skeletons ever recovered in the Western Hemisphere.” R.E. Taylor, Amino Acid Composition and Stable Carbon Isotope Values on Kennewick Skeleton Bone. The discovery also attracted attention because some physical features, such as the shape of the face and skull, appeared to differ from modern American Indians. Many scientists believed the discovery could shed considerable light on questions such as the origins of humanity in the Americas. According to Plaintiff Dr. Douglas Owsley of the Smithsonian Institution, “[w]ell-preserved Paleo American remains are extremely rare. The Kenne-wick Man skeleton represents an irreplaceable source of information about early New World populations, and as much data should be obtained from it as possible.” DOI 1585. Arrangements were made to transport the remains to the Smithsonian Institution for scientific study by a team including Plaintiffs Owsley, Jantz and Stanford. COE 7905, 9461-62. Local Indian tribes opposed scientific study of the remains on religious grounds: 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.... To put these spirits at ease, the remains must be returned to the ground as soon as possible. Joint Tribal Amici Memorandum (1997) at 4-5. In response to arguments that scientific study could provide new information about the early history of people in the Americas, the Confederated Tribes of the Uma-tilla asserted, ‘We already know our history. It is passed on to us through our elders and through our religious practices.” DOI 1376. “From our oral histories, we know that our people have been part of this land since the beginning of time. We do not believe that our people migrated here from another continent, as the scientists do.” Id. Five Indian groups (hereafter, the “Tribal Claimants”) demanded that the remains be turned over to them for immediate burial at a secret location “with as little publicity as possible,” and “without further testing of any kind.” DOI 1256-57, 1373-76, 1380. The Tribal Claimants based their demand on the Native American Graves Protection and Repatriation Act, 25 USC § 3001 et seq. (“NAGPRA”), enacted in 1990. Citing NAGPRA, the Corps seized the remains shortly before they could be transported to the Smithsonian for study. The Corps also ordered an immediate halt to DNA testing, which was being done using the remainder of the bone sample that had been submitted for the radiocarbon dating earlier. Ater minimal investigation, the Corps decided to give the remains to the Tribal Claimants for burial. As required by NAGPRA, the Corps published a “Notice of Intent to Repatriate Human Remains” in a local newspaper. Plaintiffs and others, including the Smithsonian Institution, objected to the Corps’ decision, asserting that the remains were a rare discovery of national and international significance. They questioned whether NAGPRA was applicable because certain skeletal traits did not resemble those of modern American Indians, and argued that the Tribal Claimants did not meet the statutory requirements to claim the remains. In late September 1996, several of the Plaintiffs asked Major General Ernest J. Herrell, Commander of the Corps’ North Pacific Division, to allow qualified scientists to study the remains. When the Corps failed to respond to these objections and requests, and evidenced its intent to repatriate the remains, Plaintiffs commenced this litigation. Plaintiffs have consistently sought two primary objectives: to prevent the transfer of the remains to the Tribal Claimants for burial, and to secure permission for Plaintiffs to study the remains. It is undisputed that if the Tribal Claimants gain custody of the remains, they will prohibit all further scientific study and documentation of the remains, whether by Plaintiffs or by other scientists. See, e.g., DOI 3362, 3386. B. First Phase of The Litigation On October 23, 1996, this court held a hearing on Plaintiffs’ request for a temporary restraining order. In lieu of a formal injunction, Defendants agreed to give Plaintiffs at least 14 days notice before any disposition of the remains to allow Plaintiffs time to seek relief from this court. Defendants 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.1997). Defendants then moved to dismiss this lawsuit on the grounds that Plaintiffs lacked standing to maintain this action, that the claims were not ripe because the Corps had not made a final decision, and that the claims were moot because the Corps’ earlier decision was no longer in effect. In an Opinion issued on June 27, 1997, I rejected each of those contentions. Bonnichsen v. United States, 969 F.Supp. 628 (D.Or.1997). In addition, I found “that the agency’s decision-making procedure was flawed” and its decision “premature,” that the Corps “clearly failed to consider all of the relevant factors or all aspects of the problem,” “did not fully consider or resolve certain difficult legal questions,” “assumed facts that proved to be erroneous,” and “failed to articulate a satisfactory explanation for its actions.” Id. at 645. I also questioned whether “the Corps has entirely abandoned its earlier decision and is now objectively considering the evidence and the law without any preconceived notions concerning the outcome.” Id. at 641. I vacated the Corps’ earlier decision regarding disposition of the remains, and remanded the issues to the Corps for further proceedings. The Corps was directed “to fully reopen this matter, to gather additional evidence, to take a fresh look at the legal issues involved,” and to reach a decision that was based upon all of the evidence. Id. at 645. Relevant legal standards were to be applied and the Corps was to provide a clear statement of the reasons for its decision. Id. In addition, I provided the Corps with a non-exclusive list of issues to consider on remand, and ordered Defendants to continue storing the remains “in a manner that preserves their potential scientific value” pending a final determination of the Plaintiffs’ claims. Id. at 646, 648, 651-54. In the same decision, I denied, without prejudice, Plaintiffs’ motion to study the remains, and directed the Corps to consider, on remand, “whether to grant Plaintiffs’ request for permission to study the remains.” -Id. at 632, 651. C. Events Following Remand 1. Curation Storage of the remains in a manner that preserves their potential scientific value has been a topic of considerable concern. In September 1996, the femurs apparently disappeared. It was 18 months before the Corps discovered that the femurs were missing, and almost five years before they were recovered. Only weeks after the Corps disclosed that the femurs were missing, a box with a small quantity of bones believed to be from the Kennewick skeleton was taken by Tribal representatives from the Corps’ “secure” storage facility and secretly buried, under circumstances the Corps has never satisfactorily explained. The remaining bones were initially stacked on top of each other in a plywood box — the cover held in place with strips of duct tape — with inadequate padding, environmental controls, or other precautions necessary to fully preserve their potential scientific value. COE 2470-79, 2506-07, 2521-, 5332-^49, DOI 1867-01889. A few bones were stored in a paper sack. COE 5334. The Corps allowed Tribal representatives to visit the remains to conduct religious ceremonies without notifying the court or opposing parties, and allowed the remains to be handled and stored in a manner that failed to protect them from possible contamination by modern DNA. This potentially jeopardized, and certainly complicated, subsequent efforts to identify the ancestry of the Kennewick Man through DNA analysis. During ceremonies, the Corps allowed Tribal representatives to place plant materials in the container with the remains, and to burn additional plant material (reportedly cedar or sage) on, or close to, the remains. DOI 2907, COE 2471, 5334, 7931. After it became apparent that the Corps lacked the expertise, facilities, and perhaps the commitment to properly curate the remains, the court ordered that the remains be transferred to a climate-controlled secure storage room at the Burke Museum in Seattle. 2. Limited Study of the Discovery Site In December 1997, a team composed of representatives from the Tribal Claimants, the Corps and other federal agencies, and a team from Washington State University led by Dr. Gary Huckleberry, performed a very limited investigation of the site where the remains had been found. COE 4895-A to 5036, 5815-64. The study focused on determining whether the sediment record was consistent with the radiocarbon date obtained, and whether the remains were buried intentionally or by natural causes such as a flood. Neither question was conclusively resolved, but initial indications were that the sediment record was generally consistent with the radiocarbon date. The scope of the 1997 study was severely restricted because the Tribal Claimants strongly opposed any study of the site. COE 4509, 4547-48, 4553-54, 4562-63, 4924, 5672-73, 5838-40, 5925-26, 6713-14, 6718a-b. According to Dr. Huckleberry, less than 0.0001% of the easily-testable sediment volume was examined. SUP 7. Dr. Huckleberry, among others, has strongly recommended additional investigate n of the site to confirm the accuracy of the radiocarbon date, to ascertain whether the remains may have been contaminated with “old” or “new” carbon (which could distort the radiocarbon results), and to ascertain whether any artifacts were present that might furnish clues to the cultural affiliation of the Kennewick Man. COE 4273-95, 4872-74 B, 5887-38, SUP 2-24. See also, COE 4998 (initial test of ground-penetrating radar “shows great promise” for detecting any cultural artifacts that might be present at the site). However, the Corps has refused to authorize any further study of the site, and has taken affirmative steps to prevent any future study. 3. Burial of the Discovery Site In April 1998, the Corps buried the discovery site of the remains under approximately two million pounds of rubble and dirt, topped with 3700 willow, dogwood, and cottonwood plantings. COE 5873-74, DOI 2347-51, 2515. The lengthy administrative record that Defendants filed with this court documents only a portion of the process by which the decision to bury the site was made. Nevertheless, that record strongly suggests that the Corps’ primary objective in covering the site was to prevent additional remains or artifacts from being discovered, not to “preserve” the site’s archaeological value or to remedy a severe erosion control problem as Defendants have represented to this court. The proposal to bury the site originated in September 1996, COE 4542, SUP 930-36, not in the Fall of 1997 as the Corps has represented. The Corps told the Tribal Claimants it shared their concern “that continuing erosion may result in more exposures” and that it would proceed with plans to shore up the site “as soon as possible.” SUP 934-36. The Tribal Claimants expressed dissatisfaction with the Corps’ original proposal for a temporary “soft” erosion control project, warning that other human remains could be uncovered or that pothunters might loot the site in search of artifacts. SUP 907-11, 913, COE-4542, 5678-79, 5766. The project to cover the site was initially deferred while this litigation proceeded, but was revived in 1997 after this court vacated the Corps’ original decision to turn over the remains to the Tribal Claimants. The Tribal Claimants demanded, and the Corps eventually agreed, that the site be “armored” to provide “permanent protection” against disturbances. SUP 886-93, 907-11, 913, COE 4542, 5678-79, 5766, 5798. On or about November 6, 1997, the “White House” ordered Lt. Colonel Donald Curtis, Jr., Corps District Engineer, to proceed with the armoring project. SUP 323, 821. The project was to be completed by January 1, 1998, and the Corps was given a budget of $200,000 to accomplish the task. SUP 821, COE 5873. The Corps consulted extensively with the Tribal Claimants, but told Plaintiffs nothing about plans to bury the site. The Plaintiffs heard rumors about this project, and beginning in November 1996, repeatedly asked Defendants about it. (See, e.g., COE 5900-02 (letter dated July 29, 1997), 5903 (Dec. 12,1996), and 5904 (letter of Nov. 6, 1996)). Defendants withheld all information regarding the project from Plaintiffs until December 26, 1997, COE 5732, after the final decision had been made. When the Corps’ intentions became known, legislation was introduced to prohibit the Corps from undertaking the project without approval from this court. COE 6004, 6316-20, 6341. This legislation passed both houses of Congress, and awaited only a conference committee to resolve differences in unrelated provisions of the bills. SUP 329-31. The Corps initially told the local congressional delegation that it would comply with the legislation, but in a decision made at the highest levels of the Corps, the agency reversed its course within 24 hours. COE 4535, 4654-57, SUP 279-80, 291, 320-23, 332, 334-36. Taking advantage of a brief congressional recess, the Corps announced it would proceed with the project unless enjoined. COE 5762-63, 5771a, 5772-76, 5791, SUP 273-74, 286-87, 345, 359, 381. When Plaintiffs did not immediately move for injunctive relief, the Corps proceeded with the project despite an “almost ... steady stream of calls” from outraged citizens and from some members of Congress as well. SUP 273-74. The Commander of the Corps, General Joe Ballard, predicted that “the din will die out very quickly.” SUP 273-74. Burial of the discovery site hindered efforts to verify the age of the Kennewick Man remains, and effectively ended efforts to determine whether other artifacts are present at the site which might shed light on the relationship between the remains and contemporary American Indians. DOI 2648-49, 4019-42, COE 5138. See also, SUP 950-53 (discussion of harm that can result from burial of an archaeological site). Although the Corps has represented that it buried the site to preserve its archaeological value for future study, the Corps has denied all requests to study the site. COE 4084, 4160, 4163, 4167-80, 4300-01, 5139, 5254, 5550, 5664, 5833, SUP 001-26. 4. Interagency Agreement with the Department of Interior On March 24, 1998, the Corps and the Department of Interior (DOI) entered into an Interagency Agreement that effectively assigned the DOI responsibility for deciding whether the remains are “Native American” under NAGPRA, and for determining their proper disposition. DOI 2676-78. Thereafter, the DOI assumed the role of lead agency on most issues concerning this case. 5. The Agency’s Examination of the Remains Almost two years after this matter was remanded for reconsideration, Defendants began to examine the remains in detail. The Secretary’s experts first attempted to ascertain, through non-destructive examination of the remains, approximately when the Kennewick Man had lived, his ancestry, and whether he could be linked to a modern tribe or people. Those experts estimate that he was 5' 9" to 5' 10" tall, was 45 to 50 years of age when he died, DOI 10677, and was 15 to 20 years old when the projectile point became embedded in his hip, DOI 10681. Red stains were found on several bones, which Defendants initially attributed to ochre that was sometimes used in mortuary rituals. It was later determined that the stains “are unlikely to be of cultural origin” and appeared to be the result of natural postmortem processes. DOI 9766. The condition of the remains strongly suggests that the body was not left exposed on the surface after death, but Defendants’ experts were unable to determine whether the body was buried intentionally or by a catastrophic event such as a flood. DOI 9765, 10664. One group of experts thought intentional burial was the most probable scenario, but ultimately concluded that “given the currently available evidence, the issue of whether or not this individual was intentionally buried remains unresolved.” DOI 9765. A second group of experts, who conducted limited studies on the site before it was covered, concluded that the skeleton most likely was buried by natural processes. DOI 2647, 02651. The Corps’ decision to bury the site has prevented further examination of this issue. Defendants’ experts were unable to determine, from non-destructive examination alone, when the Kennewick Man lived. However, analysis of sediment layers where he was found supports the hypothesis that he was buried not less than 7600 years ago, and could have been buried more than 9000 years ago (the date indicated by the initial radiocarbon dating). DOI 2647, 10053. Further study of the sediments was strongly recommended, DOI 2647-51, but Defendants’ decision to bury the site prevented completion of those studies. The experts compared the physical characteristics of the remains — e.g., measurements of the skull, teeth, and bones — with corresponding measurements from other skeletons. They concluded that the Kennewick remains are unlike any known present-day population, American Indian or otherwise. DOI 10665,10685-92. Like other early American skeletons, the Kennewick remains exhibit a number of morphological features that are not found in modern populations. For all craniometric dimensions, the. probabilities of membership in modern populations were zero, indicating that Kennewick is unlike any of the reference samples used. Even when the least-conservative inter-individual distances are used to construct typicality probabilities, Kennewick has a low probability of membership in any of the late Holocene reference samples.... [These results] are not surprising considering that Kennewick is separated by roughly 8,000 years from most of the reference samples [in the database.] DOI 10691. The most eraniometrically similar samples appeared to be those from the south Pacific and Polynesia as well as the Ainu of Japan, a pattern observed in other studies of early American crania from North and South America.... Only the odontometric data suggested a connection between Kennewick and modern American Indians, but the typical probabilities for this analysis were all very low. Clearly the Kennewick individual is unique relative to recent American Indians, and finds its closest association with groups of Polynesia and the Ainu of Japan. Id. Although the “strongest morphological affinities for the Kennewick remains are with contemporary or historic ‘populations in Polynesia and southern Asia, and not with American Indians or with Europeans in the reference samples’ ... even the ‘strongest’ morphological affinities with modern human populations” are “not particularly robust.” DOI 10067-68. “The Kennewick individual can be excluded, on the basis of dental and cranial morphology,” not just “from recent American Indians” but “from all late Holocene human groups.” DOI 10692 (emphasis in original). Defendants’ experts cautioned, however, that an apparent lack of physical resemblance between the Kennewick Man and present-day Indian people “does not corn-pletely rule out the possibility that these ancient remains might be biologically ancestral to modern American Indian populations.” DOI 10684. Moreover, although the Kennewick Man’s morphological traits do not closely resemble those of modern American Indian populations, Defendants’ experts note that the Kennewick Man’s traits are generally consistent with the very small number of human remains from this period that have been found in North America. DOI 10067-68, 10691. They also note potential similarities to certain Archaic populations (between 2,000 and 8,000 years old) from the northern Great Basin and eastern woodlands of North America. DOI 10068,10688,10692. Because they concluded that the nondestructive examination did not furnish a definitive answer to the question whether the Kennewick Man is “Native American” for purposes of NAGPRA, Defendants sent several small bone samples to selected laboratories for additional radiocarbon dating. Whether due to differences in how long a particular bone had been exposed to the elements, technique in selecting the samples, deterioration while in storage, or some other reason, the samples tested in 1999 were in much poorer condition than the sample tested in 1996, and there were considerable variations in the results. DOI 5809-48. The best preserved sample yielded a radiocarbon age of 8410 +/40 BP, virtually identical to the results of the 1996 testing. DOI 10020. After adjustments, the age of that sample was estimated at between 9370 and 9560 calendar years, although that date might be “several hundred years” too old if the Kennewick Man had a mostly marine diet. DOI 10027-29. The 1996 and 1999 tests, coupled with an analysis of sediments and the lithic object embedded in the ilium, established to the Secretary’s satisfaction that the remains are probably between 8500 and 9500 years old. DOI 10015,10018-22. Relying simply on the age of the remains, and the fact that they were found inside the United States, Defendants formally pronounced the remains “Native American.” DOI 10018-22. In an effort to determine whether DNA could establish a link between the remains and any particular Tribal Claimant, and to answer other questions regarding the ancestry of the remains, Defendants authorized DNA testing. The selected laboratories were unable to isolate uncontaminated DNA within the allotted time, though it is not clear why the testing failed. It is also unclear whether, given more time, different samples, or technological advances, it would be possible to isolate uncontaminated DNA from the Kennewick remains. 6. Other Studies by Defendants’ Experts In addition to examining the remains, Defendants’ experts researched and prepared reports on a variety of topics, including archaeological evidence regarding prehistoric human habitation in the southwestern Columbia Plateau, oral histories of the claimant tribes, linguistic studies, and an analysis of the lithic object embedded in the ilium. The experts’ conclusions are discussed later in this Opinion. 7. Procedural Issues on Remand Without disclosure to the public or the Plaintiffs, Defendants furnished the Tribal Claimants with advance copies of the cultural affiliation reports prepared by their experts. DOI 6982 (gave Tribal Claimants copies of draft expert reports no later than February 9, 2000); DOI 8695 (gave Tribal Claimants copies of Secretary’s “final” expert reports no later than June 21, 2000, to be used in preparing their own submissions and comments, but requested that they restrict access to the reports because “we are not planning to release these reports to the public until the Department of the Interior has made its decisions and recommendations in this matter”). The Tribal Claimants also received a private letter prepared by Dr. McMana-mon, a key decision maker for the Defendants, which articulated Defendants’ concerns regarding the evidence supporting the claim for the remains. DOI 6982, 8695-96; 8703-05, 8713-19, 9101-02. Defendants urged the Tribal Claimants to supplement the record with expert reports of their own, and to otherwise address the issues that Defendants had identified. The Tribal Claimants responded by furnishing numerous reports to Defendants. Despite Plaintiffs’ repeated requests for clarification of the issues and access to the administrative record, they were not given a similar opportunity. See, e.g., ER 400-01, DOI 8228-29; June 20 Tr. at 320-21. Plaintiffs were permitted to submit documents, but had to do so without knowing specifically what they were commenting upon. While preparing their final decision in this case, Defendants met privately with the Tribal Claimants at least once to discuss the merits of the cultural affiliation determination. DOI 8695-8705, 9101-02, 9499. Defendants did not invite Plaintiffs to participate, nor did they otherwise disclose the substance of these communications. Plaintiffs point to other documents which support the inference that Defendants are biased in favor of the Tribal Claimants. See, e.g., COE 7905 (“I told [Armand Minthorn] we will do what the tribes decide to do with the remains”); COE 9311 (“the colonel has made [turning over the remains to the Tribal Claimants] his top priority”); (COE 9471a, ER 396) (internal Corps memo stating that “[t]he District needs to make [a] clear, unequivocal demonstration of its commitment to the tribes as being a compassionate and supportive partner in restoring the remains to a condition of proper interment with dignity and respect ... ”); ER 398 ( [Dr. Owsley] “and all other members of the scientific community have been denied direct access [to the Kennewick remains] because of the district’s commitment to the tribal coalition”); COE 8663-77 (minutes of meeting between tribal representatives and Corps regarding management and construction of dams, fishing rights, and stream management, during which Kennewick Man issues were repeatedly raised). A number of these documents precede this court’s Order vacating the Corps’ original decision to award the remains to the Tribal Claimants. D. The Challenged Decisions On January 13, 2000, the DOI announced its determination that the Kenne-wick remains are “Native American” as defined by NAGPRA. DOI 5816-21. The decision was premised on only two facts: the age of the remains, and their discovery within the United States. The agency’s Opinion stated: As defined in NAGPRA, “Native American” refers to human remains and cultural items relating to tribes, peoples, or cultures that resided within the area now encompassed by the United States prior to the historically documented arrival of European explorers, irrespective of when a particular group may have begun to reside in this area, and, irrespective of whether some or all of these groups were or were not culturally affiliated or biologically related to present-day Indian tribes. DOI 5816. Applying that definition, the DOI concluded that the remains were “Native American” because they were “clearly pre-Columbian.” DOI 5819. On September 25, 2000, the DOI announced its final decision to award the Kennewick remains to a coalition of the Tribal Claimants. DOI 10012-17. The decision letter, signed by then-Secretary of the Interior Bruce Babbitt, found by a “preponderance of the evidence that the Kennewick remains are culturally affiliated with the present-day Indian tribe claimants.” DOI 10016. The Secretary “further determined that a claim based on aboriginal occupation ... is also a basis for the disposition of the Kennewick remains to the claimant Indian tribes.” Id. Relying upon their determination that the remains were subject to NAGPRA, and that the remains should be awarded to the Tribal Claimants, Defendants again denied Plaintiffs’ request to study the remains. DOI 10017, COE 0001-07. Defendants also rejected the contention that the study prohibition violates Plaintiffs’ constitutional rights under the First and Fifth Amendments. Id. Plaintiffs then filed an Amended Complaint challenging these decisions, and asserting additional claims. The parties and the amici curiae fully briefed the issues, and the court heard two days of oral argument. E. Claims Plaintiffs bring seven claims for relief. The first claim, brought pursuant to the Administrative Procedure Act (APA), 5 USC §§ 701-706, seeks judicial review of Defendants’ decision on remand. The second claim alleges several specific violations of NAGPRA. The third claim alleges that Defendants violated the National Historic Preservation Act (NHPA), 16 USC § 470 et seq., by burying the site where the remains of the Kennewick Man were found. The fourth claim alleges that Defendants violated the Archaeological Resource Protection Act (ARPA), 16 USC § 470aa et seq., by failing to maintain the Kennewick Man remains “for the benefit of the American people,” failing to make the remains of the Kennewick Man available for scientific and educational purposes, and failing to properly curate the remains to ensure their long-term preservation as required by an earlier Order of this court. The fifth claim alleges that Defendants violated the Freedom of Information Act (FOIA), 5 USC § 552, by failing to respond to Plaintiffs’ requests for information. The sixth claim, brought pursuant to the Declaratory Judgment Act, 28 USC § 2201, sets out Plaintiffs’ demand for declaratory and injunctive relief based upon violations alleged in other claims. The seventh claim, brought pursuant to 28 USC § 1361, seeks mandamus relief in the form of an Order compelling Defendants to allow Plaintiffs access to the remains of the Kennewick Man “for purposes of study, publication, teaching and scholarly debate.” In their prayer for relief, Plaintiffs request seventeen separate elements of declaratory and injunctive relief, and assert the right to recover the costs, disbursements, and reasonable attorney fees incurred in this action. II. JUDICIAL REVIEW OF DECISIONS MADE ON REMAND A. Legal Standards Under the Administrative Procedure Act, a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 USC § 706(2)(A); Northwest Motorcycle Ass’n v. United States Dept. of Agriculture, 18 F.3d 1468, 1471 (9th Cir.1994). The court is not empowered to substitute its judgment for that of the agency, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), or to set aside the agency’s decision simply because the court, as an original matter, might have reached a different result. See Arizona Cattle Growers’ Ass’n v. United States Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir.2001). However, the court is not relegated to the role of a “rubber stamp.” Id. An agency’s decision must be based upon a “reasoned evaluation of the relevant factors.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The agency must “articúlate! ] a rational connection between the facts found and the choice made,” Arizona Cattle Growers’, 273 F.3d at 1236, and an “agency’s explanation must be sufficient to permit effective judicial review.” Northwest Motorcycle, 18 F.3d at 1478. See also, In re Sang Su Lee, 277 F.3d 1338, 1342 (Fed.Cir.2002). Although the court may uphold a decision “of less than ideal clarity if the agency’s path may reasonably be determined,” the court cannot infer an agency’s reasoning from mere silence. See, Beno v. Shalala, 30 F.3d 1057, 1073-76 (9th Cir.1994) (setting aside agency decision where there was no indication that the Secretary had considered materials submitted by the plaintiffs). An agency decision will not be upheld under the arbitrary and capricious standard unless the court finds that the evidence before the agency provided a rational and ample basis for its decision. Northwest Motorcycle, 18 F.3d at 1471. An agency’s decision may also be set aside if the agency has relied on factors that Congress has not intended the agency to consider, has entirely failed to consider an important aspect of the issue, has offered an explanation for its decision that runs counter to the evidence before the agency, or if the decision is so implausible that it could not be based on a difference in view or be the product of agency expertise. Inland Empire Public Lands Council v. Glickman, 88 F.3d 697, 701 (9th Cir.1996). In some circumstances, an agency’s failure to gather or to consider relevant evidence is also grounds for setting aside the decision. See, Mt. Diablo Hospital v. Shalala, 3 F.3d 1226, 1232 (9th Cir.1993). When an agency’s decision turns upon the construction of a statute or regulation, the court must consider whether the agency correctly interpreted and applied the relevant legal standards. B. Compliance with Administrative Procedures Act Plaintiffs contend that agency decision makers had improper ex parte contacts with other agencies, the Tribal Claimants, and Defendants’ trial attorneys; foreclosed Plaintiffs’ meaningful participation in the decision-making process; furnished the Tribal Claimants with advance copies of key reports and gave the Tribal Claimants an opportunity to rebut the reports and supplement their claims without affording those opportunities to Plaintiffs; failed to act as neutral and fair arbiters of the claim; and predetermined their decisions. Plaintiffs also assert that agency decision makers improperly failed to document all information on which the decision was based, including ex parte communications. Adjudication of the Tribal Claimants’ request for repatriation of the remains of the Kennewick Man presents somewhat unusual issues of administrative procedure. In a typical adjudication, ex parte contacts between agency employees involved in the decision-making process and “interested persons” outside the agency are not allowed. See, 5 USC § 557(d)(1); Portland Audubon Society v. Endangered Species Committee, 984 F.2d 1534, 1543 (9th Cir.1993) (“We think it is a mockery of justice to even suggest that ... decisionmakers may be properly approached on the merits of a case during the pendency of an adjudication.”). However, consultation with tribal claimants is specifically mandated under the regulations applicable to NAGPRA. See, 43 CFR §§ 10.4, 10.5 (federal agency to notify tribal organizations likely to be culturally affiliated with human remains; agency must share variety of information pertaining to resolution of cultural affiliation determination). The parties have cited, and I have found, no reported decisions addressing these particular circumstances. In addition, the parties disagree as to whether a contested NAGPRA claim is an adjudication governed by 5 USC §§ 554 and 557(d)(1), and as to what procedural requirements apply if agency proceedings are not governed by those statutes. I need not determine precisely what procedures were required, because the agency’s decision must be vacated for substantive reasons regardless of the exact procedures that should have been followed. It is sufficient to note that decisions addressing the obligations of agencies under the APA in various contexts appear to uniformly require that, regardless of the particular method used to reach a decision, the decision-making process must be fair to all affected parties. E.g., Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 910 (5th Cir.1983) (critical question in any challenge to the propriety of the method used by agency in reaching decision is whether procedure used is fair). Based upon a familiarity with this litigation developed over a number of years and a thorough review of the record, I conclude that the final decisions challenged here were not made by neutral and unbiased decision makers in a fair process as is required under the APA. Though I am satisfied that the agency’s ex parte contacts with the government’s trial attorneys did not violate Plaintiffs’ rights, I am concerned by the largely undisputed evidence that agency decision makers: (1) secretly furnished the Tribal Claimants with advance copies of documents such as expert reports, which allowed the Claimants (and only the Claimants) to rebut the reports and submit responsive expert reports of their own before the administrative record closed; (2) secretly met with the Tribal Claimants at a critical time in the decision-making process to discuss the mental impressions of the decision makers and potential weaknesses in the claims, and gave the Claimants an ex parte opportunity to influence the decision makers and to supplement the record in response to these concerns; (3) secretly sent letters to the Tribal Claimants regarding the same; (4) secretly notified the Tribal Claimants that the aboriginal lands issue was under consideration so they could supplement the record before it closed; and (5) refused to allow Plaintiffs to see any of the expert reports or other materials in the record before the administrative record was closed and the final decision was made, and refused to clarify the issues under consideration. I am also concerned about the decision to cover the site where the remains of the Kennewick Man were found. Though the Corps cited erosion control as the purpose of the project, it appears that the Tribal Claimants’ concern about further site investigation was the principal factor in the decision to cover the site. That action was consistent with Defendants’ approach throughout this litigation, which has been marked by an appearance of bias. This course of conduct is especially troubling because the court set aside the original agency decision in this matter after determining that the Corps had prejudged the outcome and had suppressed any doubts about the proper result “in the interests of fostering a climate of cooperation with the tribes.” Bonnichsen, 969 F.Supp. at 642. Resolution of the present dispute concerning Defendants’ decision-making process does not require a full explication of the “consultation” requirements of the relevant regulations. It is sufficient to note that the primary purpose of consultation appears to be to inform those who may be affiliated with cultural items of their discovery and proposed disposition. Nothing in these regulations requires an agency to assume that particular items meet the statutory definitions of “Native American” or “cultural affiliation,” or to side with claimants in any dispute or litigation, or prevents an agency from furnishing the same information to tribal claimants and others interested in the agency’s determination. Nothing in NAGPRA or related regulations appears to in any way lessen an agency’s obligation to make fair and unbiased decisions concerning claims for discovered items to which the Act might apply. Nothing in the provisions for “consultation” appears to allow an agency to collude with a claimant when a third party challenges a proposed disposition. Under the APA, a court may set aside an agency action which it determines is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “without observance of procedure required by law.” 5 USC § 706(2)(A) & (D); Natural Resources Defense Council v. Houston, 146 F.3d 1118, 1125 (9th Cir.1998). A fair reading of the record before the court leads to the conclusion that, since the time the Corps took possession of the remains of the Kennewick Man, Defendants have not acted as the fair and neutral decision makers required by the APA. However, I need not decide whether this unfairness in itself is sufficient to set aside the Secretary’s decision. As discussed below, the Secretary’s decisions must be set aside on substantive grounds, and it appears that a remand with instructions to fairly reevaluate the issues again would be futile. The Secretary has developed a voluminous record which the court has reviewed, and the parties have vigorously litigated this matter over the course of several years. Under these circumstances, judicial economy and the parties’ interest in resolving this litigation favor addressing the more substantive issues. No useful purpose would be served by remanding the decision to the Secretary with instructions to again reevaluate the issues and to again revisit Plaintiffs’ request to study in light of the court’s analysis set out below. Defendants have had ample opportunity to develop and fairly evaluate the record and to make an unbiased decision, and there is no reason to believe that another remand would yield a different approach or result. C. Definition of Native American As the first step in his determination that the Tribal Claimants are entitled to the remains, the Secretary found that the Kennewick Man is “Native American” within the meaning of NAGPRA. NAGPRA defines “Native American” as “of, or relating to, a tribe, people, or culture that is indigenous to the United States.” 25 USC § 3001(9). However, in determining that the Kennewick Man is “Native American,” the Secretary defined this term as referring to human remains and cultural items that resided within the area now encompassed by the United States prior to the historically documented arrival of European explorers, irrespective of when a particular group may have begun to reside in this area, and, irrespective of whether some or all of these groups were or were not culturally affiliated or biologically related to present-day Indian Tribes. DOI 10018. Defendants have clarified that, according to this definition, “Native American” refers to any remains or other cultural items that existed in the area now covered by the United States before 1492. DOI 06048, 06050. Under this definition, regardless of their origins or history, all remains and other cultural items found in the United States that are now more than 510 years old are deemed “Native American” for the purposes of NAGPRA, even if they have no relationship to a present-day “tribe, people or culture.” In analyzing the Secretary’s determination that the remains are “Native American,” the threshold question is whether the Secretary’s definition is binding on this court. Defendants and the Tribal Claimants cite Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), in support of their contention that the court should defer to the Secretary’s definition. They also contend that the court should defer to the agency’s “longstanding” interpretation of the statute. Defendants’ arguments are not persuasive. “Chevron deference” is the deference to which an agency’s reasonable statutory interpretation is entitled where Congress has “delegated authority to the agency, generally to make rules carrying the force of law, and ... the agency interpretation claiming deference was promulgated in exercise of that authority.” United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). In most cases where Chevron deference has been applied, the agency’s interpretation has been the result of a process of notice and comment rule-making or formal adjudication, which the agency did not undertake here. See, Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (interpretations “in opinion letter— like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron-style deference”); Martin v. Occupational Safety and Health Review Com’n, 499 U.S. 144, 157, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (interpretive rules are not entitled to Chevron deference); Hall v. United States Environmental Protection Agency, 273 F.3d 1146, 1155-56 (9th Cir.2001). Although the Secretary has rule-making authority, the interpretation at issue here was not enacted by any formal process. Instead, it is a statutory interpretation that was first announced by the Secretary’s counsel during the course of this litigation. Accordingly, the interpretation is not the type of decision to which Chevron deference ordinarily applies. Defendants’ contention that the court should defer to the agency’s “longstanding” interpretation of the statute that allows for classification of the remains based solely upon age also fails. I find no support for the assertion that the agency has consistently taken the position that age alone suffices to determine “Native American” status. In response to a hypothetical posed during a hearing on June 2, 1997, Defendants indicated that NAGPRA would not govern the disposition of pre-Colum-bian remains that, for example, were clearly African and not American Indian. COE 7360-61. The Secretary’s subsequent decision that all remains and other cultural items predating 1492 are “Native American” cannot be fairly characterized as “longstanding.” The objective of statutory interpretation is to ascertain the intent of Congress. United States v. Daas, 198 F.3d 1167, 1174 (9th Cir.1999). The inquiry begins with the plain language of the statute. Id. Courts look to the entire statutory scheme to determine the plain meaning and congressional intent of a particular statutory provision, and give terms that are not defined by statute their ordinary meaning. Id. When interpreting statutes, courts do not assume that Congress intended to create odd or absurd results. United States v. X-Citement Video, Inc., 513 U.S. 64, 69-70, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (citing Public Citizen v. United States Department of Justice, 491 U.S. 440, 453-455, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989)). As noted above, NAGPRA defines “Native American” as “of, or relating to, a tribe, people, or culture that is indigenous to the United States.” § 3001(9) (emphasis added). Giving the “plain language” of this provision its ordinary meaning, use of the words “is” and “relating” in the present tense requires a relationship to a presently existing tribe, people, or culture. This is consistent with the Act’s definition of the term “sacred objects” as meaning “ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day adherents.” 25 USC § 3001(3)(C) (emphasis added). From this consistent use of the present tense, it is reasonable to infer that Congress intended the term “Native American” to require some relationship between remains or other cultural items and an existing tribe, people, or culture that is indigenous. The present-day people who are indigenous to the 48 contiguous states of the United States are, of course, the people who have been known as American Indians for hundreds of years. Interpreting the statute as requiring a “present-day relationship” is consistent with the goals of NAGPRA: Allowing tribes and individuals to protect and claim remains, graves, and cultural objects to which they have some relationship, but not allowing them to take custody of remains and cultural objects of persons and people to whom they are wholly unrelated. The literal statutory definition of Native American, as applied to the continental United States, is also consistent with the common usage of the term. When the statute was enacted in 1990, the term “Native American” had become synonymous with “American Indian.” It is obvious from the text of NAGPRA that Congress intended to include Alaska Natives and Native Hawaiians within the definition. However, as to the contiguous 48 states, nothing in the statute indicates that Congress intended to define Native American as including people or objects with no relationship to present-day American Indians. As noted above, courts do not assume that Congress intends to create odd or absurd results. The potential for such results under the Defendants’ definition of “Native American” further supports the conclusion that their definition is incorrect. Under that definition, all pre-Columbian remains and objects would be treated as Native American, “irrespective of when” a group arrived and regardless of whether the individuals are related in any way to present-day American Indians. Application of this definition could yield some odd results. The origin of the earliest Americans is an unresolved question. According to one theory with some support in the record, beginning up to 30,000 to 40,000 years ago, multiple waves of immigrants separated by thousands of years, with different points of origin and modes of travel, came into this hemisphere. See, e.g., DOI 0631, 0956, 1508, 2143-45, 2177-85, 2786-99, 3203, 3425-26, 3930, 3940-64, 4269, 6704-05, 6850-51, 7236, 7861-66, 7888, 8206-09, 9547-48, COE 4747, 8036-40. Limited studies conducted on very old remains suggest that the peopling of the Americas was complex. See, e.g., DOI 9548 (very ancient skulls found on this continent “more closely resemble southern Asian and Pacific Rim populations, while modern Native Americans bear close resemblance to northern Asian groups”). Some studies of ancient remains show little apparent affinity between ancient skulls and present-day American Indians (or any other modern group), and often show little affinity among the ancient remains themselves. See, e.g., DOI 1721-22, 2251-52, 3863-67, 3930, 8186, 8944, 9548, 10441-42. There is also evidence in the record that differences in appearance may reflect genetic differences between ancient samples and more recent American Indians and northern Asian populations. DOI 3930-31, 5944-46. Under the Defendants’ interpretation, possibly long — extinct immigrant peoples who may have differed significantly — genetically and culturally — from any surviving groups, would all be uniformly classified as “Native American” based solely upon the age of their remains. All pre-Columbian people, no matter what group they belonged to, where they came from, how long they or their group survived, or how greatly they differed from the ancestors of present-day American Indians, would be arbitrarily classified as “Native American,” and their remains and artifacts could be placed totally off-limits to scientific study. This court cannot presume that Congress intended that a statutory definition of “Native American” requiring a relationship to a “tribe, people, or culture that is indigenous to the United States” yield such far-reaching results. The Secretary erred in defining “Native American” to automatically include all remains predating 1492 that are found in the United States. Nevertheless, the Secretary’s ultimate determination that the remains of the Kennewick Man are “Native American” under NAGPRA is erroneous only if the administrative record contains insufficient evidence to support the conclusion that the remains are related to a present-day tribe, people, or culture that is indigenous to the United States as required by the statute. NAGPRA recognizes two distinct kinds of relationships: The first is the general relationship to a present-day tribe, people, or culture that establishes that a person or item is “Native American.” The second, more narrowly defined specific relationship establishes that a person or item defined as “Native American” is also “culturally affiliated” with a particular present-day tribe. The requirements for establishing “Native American” status under NAGPRA are not onerous. They may be satisfied not only by showing a relationship to existing tribes or people, but also by showing a relationship to a present-day “culture” that is indigenous to the United States. The culture that is indigenous to the 48 contiguous states is the American Indian culture, which was here long before the arrival of modern Europeans and continues today. It is clear from the full text of NAGPRA that the cultural relationship required to meet the definition of “Native American” is less than that required to meet the definition of “cultural affiliation,” which is discussed in detail later in this Opinion. For example, American Indian groups that became extinct since 1492 are no doubt culturally related to current American Indians, and are therefore “Native American” under the terms of NAGPRA. It is also clear from the record that a cultural relationship could be established for many people and items from prehistoric times. However, this case involves one particular set of 9,000-year-old remains, and it is the relationship to those remains that must be analyzed here. The term “Native American” requires, at a minimum, a cultural relationship between remains or other cultural items and a present-day tribe, people, or culture indigenous to the United States. A thorough review of the 22,000-page administrative record does not reveal the existence of evidence from which that relationship may be established in this case. The evidence in the record would not support a finding that Kennewick Man is related to any particular identifiable group or culture, and the group and culture to which he belonged may have died out thousands of years ago. Though the cranial measurements and features of Kennewick Man most closely resemble those of Polynesians and southern Asians, these characteristics differ from those of any modern group living in North America or anywhere else. DOI 05879, 05885, 10067-68, 10665, 10685-92. Kennewick Man’s culture is unknown and apparently unknowable. As is perhaps not surprising with remains more than 9,000 years old, there is not evidence that will support the conclusion that the remains are “of, or relating to, a tribe, people, or culture that is indigenous to the United States.” The record would not support a finding that the ancestors of the American Indians were the only people here in prehistoric times, or that only one culture existed throughout prehistoric times. Congress did not create a presumption that items of a particular age are “Native American.” Therefore, the Secretary did not have sufficient evidence to conclude that the Kennewick Man remains are “Native American” under NAG-PRA. Without such a finding, NAGPRA does not apply to the remains. See, 25 USC § 3002(a) (setting out priority of “ownership or control of Native American cultural items”) (emphasis added); DOI 10012 (initial determination that remains were Native American “triggered” application of NAGPRA). Therefore, the disposition of the remains is governed by the application of other Federal law as set forth later in this Opinion. D. Cultural Affiliation The Secretary misinterprets the term “Native American” and the record will not support the conclusion that the remains are “Native American” under the terms of NAGPRA. It is therefore arguably unnecessary to review the Secretary’s related conclusion that the remains are culturally affiliated to a coalition of tribal claimants. I conclude that review of the Secretary’s cultural affiliation analysis is nevertheless appropriate. As noted above, I needed to review all the material related to the Secretary’s cultural affiliation analysis to determine whether that material included evidence that would support the conclusion that the remains satisfied the definition of “Native American.” Because I have thoroughly reviewed this record, judicial economy favors creating a complete record for possible appellate review, and perhaps avoiding more delays in this litigation. NAGPRA provides that the “ownership or control” of Native American cultural items (including human remains) excavated or discovered on Federal or tribal lands after November 16, 1990, shall be (with priority given in the order listed)— (1) in the case of Native American human remains and associated funerary objects, in the lineal descendants of the Native American; or (2) in any case in which such lineal descendants cannot be ascertained, and in the case of unassociated funerary objects, sacred objects, and objects of cultural patrimony— (A) in the Indian tribe or Native Hawaiian organization on whose tribal land such objects or remains were discovered; (B) in the Indian tribe or Native Hawaiian organization which has the closest cultural affiliation with such remains or objects and which, upon notice, states a claim for such remains or objects; or (C) if the cultural affiliation of the objects cannot be reasonably ascertained and if the objects were discovered on Federal land that is recognized by a final judgment of the Indian Claims Commission or the United States Court of Claims as the aboriginal land of some Indian tribe— (1) in the Indian tribe that is recognized as aboriginally occupying the area in which the objects were discovered, if upon notice, such tribe states a claim for such remains or objects, or (2) if it can be shown by a preponderance of the evidence that a different tribe has a stronger cultural relationship with the remains or objects than the tribe or organization specified in paragraph (1), in the Indian tribe that has the strongest demonstrated relationship, if upon notice, such tribe states a claim for such remains or objects. 25 USC § 3002(a). The parties agree that the lineal descendants of the Kennewick Man, if any, cannot be ascertained, and