Na Iwi O Na Kupuna O Mokapu v. Dalton

ORDER GRANTING FEDERAL DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF HUI MALAMA’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

This court heard the parties’ motions on July 10, 1995. Paul F.N. Lucas, Esq., and Aan T. Murakami, Esq., appeared on behalf of Plaintiff Hui Malama I Na Kupuna 0 Hawañ Nei (hereinafter “Hui Malama”); Daria J. Zane, Attorney for the Department of Justice General Litigation Section, Environment and Natural Resources Division, and Theodore G. Meeker, Assistant United States Attorney, appeared on behalf of the Federal Defendant John Dalton (hereinafter “the Federal Defendant”). After hearing argument and reviewing the motions and the supporting and opposing memoranda, the court GRANTS the Federal Defendant’s Motions for Summary Judgment, and DENIES Plaintiff Hui Malama’s Cross-Motion for Partial Summary Judgment regarding Count II of the Complaint.

BACKGROUND

Congress enacted the Native American Graves Protection and Repatriation Act (“NAGPRA”) on November 16, 1990. On March 25, 1992, the Federal Defendant awarded a contract to the Bishop Museum to prepare an inventory of the human remains disinterred from the Mokapu Peninsula (hereinafter “the Mokapu remains” or “the Na Iwi”) in compliance with NAGPRA Section 3003. This was the first Department of Defense project falling under NAGPRA.

At the time the contract was awarded, there were no federal regulations or guidelines for preparing an inventory under NAG-PRA. The proposed implementing regulations relating to NAGPRA were not issued until May 28, 1993, and as of this date are still not finalized. The Department of the Interior did not provide inventory guidelines and examples until March 1995.

The Mokapu remains represented the largest single group of Native Hawaiian remains housed at the Bishop Museum at the time of the inventory. The general objective of the Mokapu inventory was to provide an accurate list of the human remains and funerary objects from the Mokapu Peninsula, and to establish a minimum number of individuals represented by the remains. The enumeration of individuals was effectively to be a census, with morphometric and macroscopic assessments of sex, age, and distinguishing characteristics noted as aids to compare with the limited information contained in the previously prepared Osteology Catalog. 1

Because several different research scholars, curators, and other staff listed the remains, the descriptions in the Osteology Catalog relating to sex, age, distinguishing physical attributes and pathological observations varied. Review of such data revealed a significant number of discrepancies between *1403 the accessions described as one individual and the remains actually present. 2

The lack of a systematic curatorial program left the Mokapu collection in some disarray. At the commencement of the inventory, there was some confusion of skeletal parts within the collection of remains. The actual minimum number of individuals represented was not determinable based on the existing data. In addition, there was extensive commingling of remains within accessions. That is, though an accession listed only one individual, more than one individual was in fact often present.

As a result of the commingling and discrepancies between the remains and the records relating to them, the data contained in the Osteology Catalog could not be used to conduct a proper inventory. It became necessary to examine the Mokapu remains using standard physical anthropology techniques. The inventory report indicates that Bishop Museum employed such techniques. The museum performed no DNA analyses, nor did the museum conduct extensive metric or nonmetrie analyses of the remains. 3

During the inventory process, pursuant to Section 3003(b)(1)(A) of NAGPRA, consultations were held with, inter alia, Hui Malama. Formal meetings were held on March 25, 1992, January 13, 1993, and February 27, 1993. Telephone consultations also occurred periodically.

Among the issues specifically discussed during these consultations were the difficulties encountered by Bishop Museum. Bishop Museum advised Hui Malama that it intended to use current anthropological methods of determining age and sex to obtain a more accurate enumeration of individuals.

At the January 13,1993 meeting, representatives of the Federal Defendant made presentations regarding the methodologies Bishop Museum was using in conducting the inventory and the status of the project. The Federal Defendant’s representatives reported the preliminary results of the physical anthropological examinations relating to age, sex, skeletal completeness and recorded pathologies.

At the next meeting on February 27,1993, the parties specifically discussed the discrepancies discovered in the curatorial records versus the actual remains and the problems associated with separation and commingling of the remains. Topics discussed included skeletal completeness, skeletal alteration, determinations of ethnicity, sex, and age, pathologies, and metric determinations.

Bishop Museum finalized the inventory, consisting of the narrative report and appendices, in January 1994. The Secretary of the Interior published the notice of completion in the Federal Register in accordance with NAGPRA. See 25 U.S.C. § 3003(d)(3). Potential claimants received copies of the inventory upon request. Distribution of the inventory to date has been limited primarily to: (1) claimants; (2) persons involved in this litigation; (3) Navy personnel; (4) the Review Committee and National Park Service Consulting Archaeologist pursuant to NAG-PRA requirements; and (5) requestors under the Freedom of Information Act, 5 U.S.C. § 552. The inventory has not yet been published.

On June 14, 1994, Hui Malama brought suit against the Federal Defendant and the Bishop Museum for declaratory and injunctive relief. 4 The complaint alleged: (Count I) — that the Federal Defendant failed to re *1404 turn expeditiously the Mokapu remains in violation of NAGPRA Sections 3005 and 3010; and (Count II) — that the Federal Defendant conducted additional scientific research on the Mokapu remains in derogation of alleged agreements between the Federal Defendant and Hui Malama and in violation of NAGPRA Sections 3003 and 3010. Complaint at 6-9.

Hui Malama’s original Complaint prayed that the court: (1) declare that the Federal Defendant violated NAGPRA Section 3005 by failing to return expeditiously the Mokapu remains; (2) declare that the Federal Defendant violated NAGPRA Section 3003 by undertaking additional research on the Mokapu remains; (3) order that the results of the additional research be deleted from all published inventory reports; (4) order that the research information be placed under seal, subject to disclosure only upon the express written approval of Hui Malama; (5) order the expeditious return of the Mokapu remains to Hui Malama; and (6) grant Hui Malama its costs and attorney fees. Id. at 9-10.

The Federal Defendant filed its first Motion for Summary Judgment on January 27, 1995 (hereinafter “Federal Defendant’s January Motion for Summary Judgment”) regarding both Counts I and II of Hui Malama’s Complaint. Hui Malama subsequently withdrew Count I regarding the request for immediate repatriation to Hui Malama. See discussion infra part I. Following settlement negotiations during Spring 1995, the Federal Defendant filed a second Motion for Summary Judgment on May 11,1995 (hereinafter “Federal Defendant’s May Motion for Summary Judgment”), addressing only the additional scientific research issue contained in Count II. Hui Malama also filed a Cross-Motion for Partial Summary Judgment on May 11,1995, seeking summary judgment on Count II.

STANDARD OF REVIEW

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The moving party has the initial burden of “identifying for the court those portions of the materials on file in the case that it believes demonstrate the absence of any genuine issue of material fact.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). In a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party. State Farm Fire & Casualty Co. v. Martin, 872 F.2d 319, 320 (9th Cir.1989).

Once the moving party has met its burden of demonstrating the absence of any genuine issue of material fact, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. T.W. Elec., 809 F.2d at 630; Fed.R.Civ.P. 56(e). The opposing party may not defeat a motion for summary judgment in the absence of any significant probative evidence tending to support its legal theory. Intel Corp. v. Hartford Accident & Indemnity Co., 952 F.2d 1551, 1558 (9th Cir.1991). The nonmoving party cannot stand on its pleadings, nor can it simply assert that it will be able to discredit the movant’s evidence at trial. T.W. Elec., 809 F.2d at 630; Blue Ocean Preservation Soc. v. Watkins, 754 F.Supp. 1450, 1455 (D.Haw.1991); Fed.R.Civ.P. 56(e). If the nonmoving party fails to assert specific facts, beyond the mere allegations or denials in its response, summary judgment, if appropriate, shall be entered. Lujan v. National Wildlife Fed’n, 497 U.S. 871, 884, 110 S.Ct. 3177, 3186, 111 L.Ed.2d 695 (1990); T.W. Elec., 809 F.2d at 630; Fed.R.Civ.P. 56(e). There is no genuine issue of fact if the opposing party fails to offer evidence sufficient to establish the existence of an element essential to that party’s case. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552; Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir.1994); Blue Ocean, 754 F.Supp. at 1455.

In considering a motion for summary judgment, “the court’s ultimate inquiry is to determine whether the ‘specific facts’ set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on *1405 that evidence.” T.W. Elec., 809 F.2d at 681 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). Inferences must be drawn in favor of the nonmoving party. T.W. Elec., 809 F.2d at 681. However, when the opposing party offers no direct evidence of a material fact, inferences may be drawn only if they are reasonable in light of the other undisputed background or contextual facts and if they are permissible under the governing substantive law. Id. at 631-32. If the factual context makes the opposing party’s claim implausible, that party must come forward with more persuasive evidence than otherwise necessary to show there is a genuine issue for trial. Bator v. State of Hawaii, 39 F.3d 1021, 1026 (9th Cir.1994) (citing California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir. 1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 699, 98 L.Ed.2d 650 (1988)).

DISCUSSION

I. Federal Defendant’s January Motion for Summary Judgment on Count I: Failure to Return Mokapu Remains to Hui Malama

Hui Malama’s original Complaint alleged that the Federal Defendant violated NAG-PRA Section 3005 by failing to return expeditiously the Mokapu remains to Hui Malama once cultural affiliation was known. Complaint at 6-8. At the time Hui Malama filed the Complaint the organization believed itself to be the only group requesting repatriation of the remains. Hui Malama withdrew Count I after learning that fourteen other groups also made claims to the remains. Hui Malama thus concedes that it is no longer seeking adjudication of its repatriation claim pending the Federal Defendant’s decision regarding which group is entitled to receive the Mokapu remains. Hui Malama’s concession effectively renders Count I of the Complaint and the issues relating to it moot. However, Hui Malama has not formally withdrawn Count I as set forth in the original Complaint. Because the Federal Defendant has moved this court for summary judgment on Count I and Hui Malama has responded to the motion, and because this issue is likely to arise again, the court here addresses the questions relating to repatriation.

Hui Malama contends that in the context of a repatriation dispute, the Federal Defendant would adequately represent the interests of any claimant to the remains not joined with Hui Malama. This argument fails. In no way can the Federal Defendant be considered an adequate representative of other claimants’ interests in this context. The myriad differences in the parties’ respective motivations and concerns with respect to the issues in this case makes consideration of the Federal Defendant and Native Hawaiian groups as parties with common interests untenable. The other claimants are indispensable parties who must be joined before a repatriation claim may proceed.

Regarding the Federal Defendant’s exhaustion and ripeness arguments, Hui Ma-lama suggests that if a repatriation claim was still at issue, exhaustion of administrative remedies would not be required for the claim to be ripe. According to Hui Malama, the fact that NAGPRA contains a savings clause and an enforcement provision giving district courts jurisdiction of suits brought under NAGPRA indicates that there is no exhaustion requirement. See 25 U.S.C. §§ 3009, 3013. However, NAGPRA clearly provides for an administrative process under which the agency will decide to whom remains should be repatriated. See 25 U.S.C. § 3005. To date, the Federal Defendant has not made a decision on repatriation of the Mokapu remains. Until the Federal Defendant repatriates the Mokapu remains in accordance with NAGPRA provisions, there is no final agency action to challenge. 5 Judicial intervention prior to the agency’s decision would disrupt the agency process and result in a waste of judicial resources. This is precisely the type of administrative decision *1406 to which exhaustion requirements and the ripeness doctrine are intended to apply. Hui Malama’s challenge to the repatriation process as contained in Count I of the Complaint is therefore not appropriately before this court.

For these reasons, the court GRANTS the Federal Defendant’s January Motion for Summary Judgment on Count I of the Complaint alleging failure to return the Mokapu remains to Hui Malama in violation of NAG-PRA Section 3005. 6

II. Standing Issues

A. Standing; Human Remains

The Complaint filed on June 14, 1994 lists the Na Iwi, or the Mokapu remains, as Plaintiffs. The Na Iwi purportedly brought this action by and through their alleged guardian, the Native Hawaiian organization Hui Malama. Consistent reference to “Plaintiffs Na Iwi” in the Complaint as well as Hui Malama’s Memorandum in Opposition to Defendant’s January Motion for Summary Judgment make it clear that the Mokapu remains were intended as Plaintiffs in their own right. Hui Malama asserts that according to Hawaiian custom, human remains are spiritual beings that possess all of the traits of a living person. The Federal Defendant’s physical examination of the remains was, they contend, a violation and desecration of the remains. As a result, the remains have allegedly suffered an injury to their spiritual well-being and have standing to bring suit.

However, as the Federal Defendant correctly contends, neither the provisions of NAGPRA nor the common law afford standing to the Mokapu remains. Human remains are explicitly classified as “cultural items” under NAGPRA. See 25 U.S.C. § 3001(3). NAGPRA simultaneously fails to list human remains as legally-recognized “persons” or as an entity with a legally-protected interest under the statute. See 25 U.S.C. §§ 3001-3013; 43 C.F.R. § 7.3 (1993). Because Congress omitted human remains from all NAG-PRA provisions concerning statutory participants and their rights, fundamental tenets of statutory construction dictate that the court assume Congress did not consider human remains as having a legally-protected interest under the Act. See West Coast Truck Lines, Inc. v. Arcata Community Recycling Center, Inc., 846 F.2d 1239, 1244 (9th Cir.), cert. denied, 488 U.S. 856, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988). The provisions of NAG-PRA do not grant the Mokapu remains standing to sue under the Act.

No court has addressed the issue of whether human remains have legal standing at common law. Hui Malama cites several cases where federal courts have apparently permitted non-human entities, such as animals and natural habitats, to bring suit, and attempts to draw an analogy with the human remains. 7 None of the cases Hui Malama cites, however, contains any indication that the parties or the court challenged the standing of the non-human plaintiffs. This court has previously denied standing to a nonhuman plaintiff where the opposing party timely objected. See Hawaiian Crow v. Manuel Lujan, Jr., Civ. No. 91-00191 (D.Ha *1407 waii Sept. 13, 1991). Furthermore, all of the eases cited by Hui Malama involved more than one named plaintiff, supporting the inference that at least one of the other named plaintiffs had proper legal standing. These cases leave the legal status of non-human entities for standing purposes in doubt.

The court finds no sound legal basis for granting standing to human remains. Even the eases cited by Hui Malama refer to living organisms or dynamic ecosystems that are generally recognized as capable of suffering real injury in terms of physical or demonstrable detriment. Objects or entities without any attributes of life in the observable or provable sense are generally not afforded a legally-protected interest for standing purposes.

The court notes that inanimate entities such as ships and corporations are accorded standing in their own right, but these forms of standing are legal fictions created for the benefit of living members of society. Allowing these entities to act as parties to lawsuits facilitates business and commerce, which in turn furthers societal interests and benefits individual persons. Hui Malama has not shown that a comparable identifiable benefit to living members of society would result from affording human remains standing. Even Justice Douglas’ dissenting opinion in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), one of the most creative treatments of the subject, supports only the idea that inanimate entities should be granted legal status for standing when they act as surrogates for the interests of living things:

The river, for example, is the living symbol of all the life it sustains or nourishes — fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependant on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it.

Sierra Club, 405 U.S. at 743, 92 S.Ct. at 1370 (Douglas, J. dissenting). In sum, it is unclear whether this court could even reach the issue of the remains’ eligibility for legal standing.

The court need not further consider the remains’ eligibility for standing, however, because the court finds that the Mokapu remains have not met common law standing requirements. A plaintiff must meet three requirements to have standing: (1) the plaintiff must have suffered an “injury in fact”— an invasion of a legally-protected interest; (2) there must be a causal connection between the injury and the conduct complained of — the injury must be fairly traceable to the challenged action of the defendant; and (3) it must be likely that the injury will be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992); Valley Forge College v. Americans United, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).

There is no evidence that the remains have suffered an “injury in fact.” 8 NAGPRA’s designation of human remains as “items” and not as persons with legally-protected rights or as an entity with a legal personality precludes this court from contravening Congress’ obvious intent to deny human remains an interest susceptible to injury in the legal sense. Even if this court could ignore the clear legislative mandate and permit a showing that the remains have suffered some injury, Hui Malama’s unsubstantiated assertions would not suffice to show that the remains did in fact suffer an injury. The Mokapu remains have not suffered a legally cognizable injury.

Further, even if the court recognized the Mokapu remains as having suffered some legally cognizable injury, Hui Malama has shown no causal connection between any injury and actions taken by the Federal Defendant. The record demonstrates that the Federal Defendant has attempted to conform its actions to its perceived obligations under NAGPRA regarding proper treatment and repatriation of the human remains in its care. *1408 Hui Malama has presented no evidence showing that the Federal Defendant either intentionally or incidentally caused any harm to the well-being of the Mokapu remains. Hui Malama’s failure to demonstrate any traceable relationship between the Federal Defendant’s actions and any alleged injury suffered by the Mokapu remains precludes the court from granting standing to the Mokapu remains.

A practical concern further cautions this court against granting standing to the Mokapu remains. Granting standing would necessitate a guardian to accomplish the tasks involved with litigation. NAGPRA does not contemplate any kind of guardianship regarding the disposition of claims or disputes concerning human remains. Although NAGPRA does mention Hui Malama in its definitional section as an organization providing guidance and expertise in decisions regarding Native Hawaiian cultural issues, see 25 U.S.C. § 3001(6), Congress did not clearly confer guardian status upon Hui Ma-lama by this reference.

Hui Malama argues that, under Hawaiian law, the government is obligated to protect all rights “customarily and traditionally exercised” by Native Hawaiians, and therefore this court should recognize the Hawaiian concept of spiritual guardianship. The underlying argument is not entirely without merit. See Pele Defense Fund v. Paty, 73 Haw. 578, 837 P.2d 1247, 1271 (1992), cert. denied, — U.S. -, 113 S.Ct. 1277, 122 L.Ed.2d 671 (1993); H.R.S. § 1-1. However, as the court does not recognize the Mokapu remains’ standing to bring suit, discussion about any kind of guardianship— legal, spiritual, or otherwise — is moot. Moreover, even if the court granted standing to the remains, nowhere does Hawaiian law acknowledge Hui Malama as the sole guardian for all Native Hawaiian human remains. Where claims among several Native Hawaiian groups may conflict, equity would require that all the groups serve jointly as guardian of the human remains for the purpose of negotiating or litigating on the remains behalf prior to proper repatriation.

According to the foregoing analysis, Congress did not confer statutory standing upon human remains under NAGPRA, and the Mokapu remains do not satisfy common law standing requirements. The court finds that the Mokapu remains do not have standing to sue and are not plaintiffs in this action. Further, even were the remains to have standing, neither NAGPRA nor Hawaiian law legally confers guardian status solely upon Hui Malama. Hui Malama’s participation in that capacity for any reason would be improper without joining as co-guardians all other parties whose rights and interests may be affected.

B. Standing; Hui Malama

As the Mokapu remains do not have standing to bring suit, Hui Malama must satisfy standing requirements in its own right for the suit to survive. Although the Federal Defendant concedes that Hui Malama has proper standing relating to Count II of the Complaint, this court must satisfy itself that Hui Malama has legal standing before it can properly recognize Hui Malama as Plaintiff.

Hui Malama contends that NAG-PRA itself grants Hui Malama standing under two provisions. First, Hui Malama asserts that its inclusion in the definitional section of the statute effectively grants the organization standing. See 25 U.S.C. § 3001(6). While NAGPRA recognizes Hui Malama as a party with an interest in Native Hawaiian matters generally, the court does not construe this recognition as conferring standing. Absent an express provision granting standing to Hui Malama, the court cannot infer that Congress intended to do so. The conspicuous absence in the legislative history of any indication that Congress intended to grant standing to Hui Malama under the statute furthers the inference that there was no such intention. The court construes Congress’ mention of Hui Malama in the definitional section as providing an intended source of information that parties working under the provisions of NAGPRA may consult in order to better facilitate the statute’s goal, namely proper repatriation of Native Hawaiian cultural items. The words of the statute convey nothing more.

*1409 Hui Malama also contends that NAGPRA provides it standing under Section 3013. Section 3013 reads in pertinent part: “The United States district courts shall have jurisdiction over any action brought by any person alleging a violation of this chapter____” 25 U.S.C. § 3013 (emphasis added). Hui Malama argues that as a corporation it qualifies as a “person” and may sue on behalf of its injured members. See, e.g., Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). The court agrees with this construction. If Hui Malama satisfies settled constitutional organizational standing requirements, Hui Malama may qualify as a “person” entitled to sue under NAGPRA.

For an association or organization to have standing to bring suit on behalf of its members, three requirements must be met: (1) the association’s members must otherwise have standing to sue in their own right; (2) the interests the members would seek to protect must be germane to the association’s purpose; and (3) the claims asserted or the relief requested must require the participation of individual association members in the lawsuit. Hunt, 432 U.S. at 343, 97 S.Ct. at 2441. Hui Malama satisfies all three requirements.

First, as conceded by the Federal Defendant, members of Hui Malama have allegedly been personally injured by the Federal Defendant’s actions in a sense sufficient to satisfy standing requirements. Through declarations of its members, Hui Malama has alleged actual injury to particular members of the organization, which the Federal Defendant allegedly caused and which this court has the power to redress. 9 As such Hui Malama members have demonstrated sufficient injury in fact to confer individual standing and satisfy the first part of the Hunt test.

Second, efforts by Hui Malama members to expunge the results of the physical examination are consistent with Hui Malama’s purpose. According to Hui Malama members, the organization’s function is to care for and protect Native Hawaiian remains. See Declarations of Edward Halealoha Ayau at 3-4, Kunani Nihipali at 4, and Pualani Kanahele at 2-3. NAGPRA states that Hui Malama’s main function is to provide guidance and expertise in decisions dealing with Native Hawaiian cultural issues, particularly burial issues. See 25 U.S.C. § 3001(6). Hui Malama members view the interest they currently seek to protect as consistent with both the self-styled and statutorily-defined purposes of Hui Malama. In the context of this case, the court agrees. The organization’s central function as described in the declarations does not deviate significantly from the one enumerated in NAGPRA. The declarations therefore provide sufficient evidence that the interest in expunging the information contained in the inventory report is germane to Hui Malama’s purpose.

Finally, members of Hui Malama who have allegedly suffered emotional, spiritual, and physical harm as a result of the inventory report’s publication must participate in the litigation to satisfactorily adjudicate the issue. Through submission of declarations to help the court understand the issues and abate any perceived harm, the participation of individual Hui Malama members is indispensable.

As all three requirements of Hunt are satisfied, the court finds that Hui Malama has standing to act as Plaintiff in this suit. Rule 17(a) provides that “[n]o action shall be dismissed ... until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest.” Fed.R.Civ.P. 17(a). For the purposes of this *1410 disposition, the court hereby substitutes Hui Malama as Plaintiff sua sponte. 10

III. Count II: Additional Scientific Research in Violation of NAGPRA Sections 3003 and 3010

Count II of the Complaint alleges that the Federal Defendant, without informing Hui Malama and in derogation of agreements by Defendant in consultation with Hui Malama, 11 undertook additional scientific research on the Mokapu remains, and prepared a report concerning the results of the research, in violation of NAGPRA Sections 3003 and 3010. 12 Complaint at 8-9.

As set forth below, the Freedom of Information Act (“FOIA”) controls the resolution of Count II. 13 In accordance with FOIA, and consistent with NAGPRA, the court DENIES Hui Malama’s requests to: (1) delete and place under seal certain information contained in the Mokapu inventory; (2) declare that the Federal Defendant violated NAG-PRA Section 3003 by its examination of the Mokapu remains; and (3) grant Hui Malama its attorney fees and costs.

A. FOIA Mandates Disclosure of Complete Inventory

The Freedom of Information Act mandates the disclosure of information controlled by the federal government. FOIA “reflect[s] ‘a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.’ ” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 475, *1411 107 L.Ed.2d 462 (1989) (citing Department of Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976) (quoting S.Rep. No. 813, 89th Cong., 1st Sess. 3 (1965))). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2327, 57 L.Ed.2d 159 (1978).

1. The Inventory is Subject to FOIA

FOIA provides that “every agency shall, upon request for identifiable records ..., make such records promptly available to any person.” 5 U.S.C. § 552(a)(4)(A). Although the Act does not specifically define what constitutes an “agency record,” the United States Supreme Court has proffered two standards which materials must meet to qualify as “agency records” under FOIA. First, the agency must “either create or obtain” the requested materials. Second, “the agency must be in control of the requested materials at the time the FOIA claim is made.” United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 145, 109 S.Ct. 2841, 2848, 106 L.Ed.2d 112 (1989); see also Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150-52, 100 S.Ct. 960, 968-69, 63 L.Ed.2d 267 (1980).

The Mokapu inventory qualifies as an agency record under these standards. The Federal Defendant contracted for and obtained the inventory. In addition, the inventory is in the Federal Defendant’s control now and for the foreseeable future. 14 As such, the inventory constitutes an agency record for FOIA purposes and is subject to the Act’s disclosure requirement, unless one of FOIA’s enumerated exemptions applies.

2. No FOIA Exemptions Apply to the Inventory

FOIA contains specific exemptions that allow non-disclosure in certain narrow circumstances. The exemptions do not, however, obscure the clear underlying policy of full disclosure where the exemptions do not directly apply. See John Doe Agency, 493 U.S. at 152, 110 S.Ct. at 475; Rose, 425 U.S. at 361, 96 S.Ct. at 1599. The exemptions are to be narrowly construed so that the underlying policy of full disclosure is furthered to the greatest extent possible. See De