NAGPRA Duty to Consult under NAGPRA. The plaintiffs claimed that FHWA had a duty to consult with them under the Native American Graves Protection and Repatriation Act (NAGPRA). The magistrate found that FHWA would have such a duty only if graves or associated items were actually been found: “Even if the Native American plaintiffs qualify as traditional religious leaders who must be consulted to identify sacred objects, the NAGPRA does not apply unless Native American cultural items are actually excavated or discovered. The mere potential for their excavation or discovery is insufficient.” Litigation Procedure Standing to Bring NHPA Claims. Two of the plaintiffs sought to challenge FHWA’s compliance with Section 106 of the NHPA by alleging that FHWA had failed to consult with members of other tribes (of which the plaintiffs were not members). The magistrate concluded that, as members of the public, these plaintiffs had standing to challenge the adequacy of FHWA’s consultation with federally recognized tribes. Supplementation of the Administrative Record – Adequacy of Consultation. The plaintiffs sought to take discovery (i.e., seek testimony from witnesses and documentary evidence) and to supplement the administrative record with this additional evidence, in order to show that FHWA had failed to consult adequately with members of federally recognized tribes. They claimed that additional discovery would disclose the extent of defendants’ knowledge of Native American burial sites and the degree to which they acknowledged or ignored this information in their decisionmaking. FHWA pointed to evidence showing that it had consulted extensively with the tribes, and that none of those tribes had objected to the adequacy of consultation. Based on that evidence, the magistrate concluded that “I cannot conceive how supplementation of the record would reveal that the Federal Defendants failed to adequately consider the views of those tribes.” The magistrate recommended denying the plaintiffs’ request to supplement the record (except for a narrow issue involving one specific property). Supplementation of the Administrative Record – Duty to Consult under NAGPRA. The plaintiffs sought to take discovery to establish that the project area actually included Native American cultural items that would give rise to a duty to consult under NAGPRA. The magistrate concluded that “plaintiffs should be allowed to supplement the record to prove first, that the Wildwood–Wemme Project area contained Native American ‘cultural items’ as defined by the NAGPRA and, second, that the Federal Defendants had prior knowledge that the Wildwood–Wemme Project would result in the excavation and/or removal of Native American ‘cultural items.’”