9/11 Families Lose Bid to Search For Remains

[Falcon_Lights1916]

http://www.nytimes.com/2008/07/08/nyregion/08remains.html?ref=nyregion

Saying that his powers were too limited to rectify what he referred to as a “grave harm,” a federal judge on Monday dismissed a request from several families of 9/11 victims to sift through tons of debris at the Fresh Kills landfill to search for human remains from the attack on the World Trade Center.

The judge, Alvin K. Hellerstein of Federal District Court in Manhattan, had hinted strongly at an emotional hearing in February that he would deny the request, praising the city for undertaking the “herculean job of repairing the gaping hole in our society,” and saying that nothing — not even the upheaval of 1.8 million tons of landfill debris — would ever return the dead to their families.

In his ruling on Monday, which he said he was making reluctantly, Judge Hellerstein wrote: “Not every wrong can be addressed through the judicial process. The grave harm suffered by the plaintiffs in this case is undeniable. But the jurisdiction of a court is limited.”

In August 2005, 17 families that had organized as the World Trade Center Families for Proper Burial Inc. filed a lawsuit claiming that the remains of their relatives still lay at Fresh Kills on Staten Island, where debris from the trade center collapse was carted. In court papers, the plaintiffs referred to a letter written in 2003 by Dr. Charles S. Hirsch, the city’s chief medical examiner, who stated that he was “virtually certain” that at least some human tissue was mixed with the dirt at Fresh Kills.

The city asked Judge Hellerstein to dismiss the suit, arguing that, for good or ill, a plaintiff’s property rights to claim a body for burial were predicated on knowing in fact that it belonged to a loved one. That is impossible in this case, the city said, because the remains at Fresh Kills are so small and scattered as to be unidentifiable.

Norman Siegel, a lawyer for the families, said he was “extremely disappointed” in Judge Hellerstein’s decision and would consider an appeal. “We are not prepared to have hundreds of human remains from victims of the 9/11 attacks have their final resting place on top of a garbage dump,” he said.

In a prepared statement, Michael A. Cardozo, the city’s corporation counsel, said the city had approached the initial task of searching the landfill for remains with “dignity, care and respect” and planned to build a park there, partly in memory of the deceased.

“As Judge Hellerstein noted,” Mr. Cardozo said, “ ‘a memorial in such a beautiful setting can symbolize the vital continuation of our vibrant democracy.’ ”

Judge Hellerstein himself seemed to struggle openly with his decision, both at last winter’s hearing and in his 23-page opinion. He wrote that city workers inspecting the debris “sifted the particles to the extent of one-quarter inch of diameter, the space between the concentric circles of a small paper clip.”

The 10-month search of the debris at Fresh Kills ended on July 15, 2002.

“All human remains that could be identified, were identified,” the judge wrote. “Only dust remains.”