Opinion
No. 2:09-cv-01072-KJM-KJN
03-31-2016
CALEEN SISK FRANCO, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant.
ORDER
Plaintiffs, the Winnemem Wintu Tribe (the "WWT") and its leaders, allege defendant United States Forest Service ("USFS" or "Forest Service") violated federal laws intended to protect and preserve religious and culturally significant sites. Fourth Am. Compl. (FAC, ECF No. 121). The sites, located in the Shasta Lake and McCloud River area of California, are: 1) Nosoni Creek; 2) the Dekkas site; 3) Coonrod Flat; 4) Buck Saddle; 5) Rocky Ridge; and 6) Antler's Bridge. Under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., the WWT requests declaratory and injunctive relief to ensure defendant complies with the statutory and regulatory requirements of the National Historic Preservation Act ("NHPA"), 54 U.S.C. §§ 300101 et seq., and National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370. The court held a hearing on the parties' cross-motions for summary judgment on June 5, 2015, at which Courtney Bateman appeared for plaintiffs and Lynn Trinka Ernce appeared for defendant. As explained below, the court GRANTS in part and DENIES in part each motion for summary judgment.
I. BACKGROUND AND RECORD CONSIDERATIONS
A. Procedural History
Plaintiffs filed suit on April 19, 2009, naming several federal agencies and individuals as defendants. Original Compl. ¶¶ 5-12, ECF No. 1. Several rounds of motion practice have narrowed both the claims and defendants, see ECF Nos. 24, 51, 82, 120, and plaintiffs filed the now-operative Fourth Amended Complaint on August 7, 2014, ECF No. 121.
The USFS lodged the Administrative Record on November 20, 2013, Notice Filing Administrative Record, ECF No. 105, and a corrected administrative record on November 27, 2013, Corrected Administrative Record, ECF No. 106. Plaintiffs filed a motion to compel the completion of the Administrative Record on February 28, 2014. ECF No. 107. The court granted the motion in part and denied it in part on July 24, 2014, and the USFS filed a Supplemental Administrative Record on September 30, 2014. ECF No. 126.
At the October 22, 2014 status conference, the parties agreed to resolve the matter through cross-motions for summary judgment. ECF No. 129. The court set a briefing schedule for the motions, and defendant USFS filed its motion for summary judgment on December 18, 2014. ECF No. 131. Plaintiffs filed an opposition and cross-motion on January 30, 2015, along with a motion to strike certain exhibits from defendant's motion. ECF Nos. 133-134. Defendant has filed an opposition. ECF No. 136. On March 13, 2015, plaintiffs filed a reply and a second motion to strike. ECF Nos. 139, 140. On April 8, 2015, plaintiffs filed a notice of supplemental authority, Confederated Tribes & Bands of the Yakama Nation v. U.S. Fish & Wildlife Serv., No. 14 -3052-TOR, 2015 WL 1276811 (E.D. Wash. Mar. 20, 2015). See ECF No. 144.
B. Threshold Record Considerations
1. Scope of Plaintiffs' Motions
As a threshold matter, the court considers defendant's argument that plaintiffs have made arguments or raised claims in their motion for summary judgment that are not encompassed by the Fourth Amended Complaint, and therefore the court should not consider those aspect of plaintiffs' motion. Opp'n at 1, 7, 11, 12, ECF No. 136. When a claim is first raised in the moving papers opposing summary judgment, it should in fact not be considered. See Demarest v. Ocwen Loan Servicing, LLC, 481 F. App'x 352, 353 (9th Cir. 2012); 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). A district court should not consider such claims because "the complaint did not provide fair notice" of them. Gonzalez v. City of Fed. Way, 299 F. App'x 708, 710 (9th Cir. 2008). This rule is not a rigid bar against considering claims or arguments raised in opposing summary judgment when the complaint does give "fair notice of what the plaintiffs' claim is and the grounds upon which it rests." Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 968-69 (9th Cir. 2006).
Defendants argue the following specific claims and arguments are improperly raised for the time in plaintiffs' motion for summary judgment and opposition and should be disregarded. The court addresses each in turn.
a. Reliance on the 2006 MOU in support of the argument that the Nosoni Creek claim is not time barred. ECF No. 133-1 at 5-7.
The 2006 MOU is not alleged in the Fourth Amended Complaint, or included in the Administrative Record. A plaintiff may not plead new facts in opposition to a summary judgment motion solely to toll the statute of limitations. Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006). The court does not consider the 2006 MOU as a basis for tolling with respect to the Nosoni Creek claim.
b. The assertion that "users of the truck ramp had to possess a permit or other authority by the Forest Service," which would be an NHPA undertaking triggering Section 106, under the Nosoni Creek claim. ECF. No. 133-1 at 7:4-7.
Plaintiffs do not allege a permit or lack thereof for the alleged truck ramp project. Fourth Am. Compl. (FAC) ¶ 53. The court will not consider the issuing of a permit as an undertaking triggering Section 106 because that is not the basis of the NHPA violation alleged in the operative complaint. /////
c. The assertion of a violation of the PA by not demarcating or excluding Coonrod Flat from the grazing permit, not monitoring the site, and not consulting with the plaintiffs prior to issuing the grazing permit. ECF No. 133-1 at 9-11.
Plaintiffs allege violations of Section 106. FAC ¶ 63. The PA was drafted to comply with the requirements of Section 106; it is a mechanism and the formal agreement ensuring that the required Section 106 analysis is conducted. AR 171. The court will consider the PA in the context of the Coonrod Flat claim.
d. Any substantive challenge to the Section 106 analysis performed in 2007 for the 2010 permit to Coonrod Flat, which is not pled in the Fourth Amended Complaint. ECF No. 133-1 at 9-11.
While not expressly pled in the Fourth Amended Complaint, the Section 106 analysis is in the Administrative Record and relevant to the question of whether defendant complied with its statutory obligations, a claim for which defendant had fair notice, as it is the basis of the NHPA and NEPA claims. The court will consider the challenge to the Section 106 analysis, while bearing in mind the NHPA and NEPA are procedural statutes, and do not prescribe any substantive outcome.
e. Any claim regarding the sufficiency of notice in constructing the Bike Trail Loop at the Buck Saddle site. ECF No. 133-1 at 11-13.
Plaintiffs plead the USFS "[failed] to disclose potential project impacts to the Winnemem tribe before creating the bike trail," and "[failed] to develop a protection plan or consult with the Winnemem before permitting the bike path." Fourth Am. Compl. ¶¶ 68, 69. The court will consider this claim.
f. Any claim regarding the determination that the "sacred prayer rock" at Buck Saddle is not an archaeological feature. ECF No. 133-1 at 11-13.
No such claim is included in the Fourth Amended Complaint, and the court will not consider any argument referencing any such claim. ///// /////
g. Plaintiffs' argument that the USFS has violated the PA by not implementing protection measures in connection with the granting of a parking permit to Jones Valley Resort. ECF No. 133-1 at 13-14.
Plaintiffs plead the "USFS has not completed a Section 106 process as required by the NHPA and Advisory Council regulations to avoid, minimize, or mitigate the adverse effects of the parking lot." Fourth Am. Compl. ¶ 74. Because the PA was entered into to comply with Section 106, and is in the Administrative Record, the court will consider it in this context as well.
h. Plaintiffs' argument that discovery of a midden deposit in January 2010 at Antler's Bridge, which led to the issuance of the CalTrans ARPA permit in October 2010, was a "late discovery" that required a Section 106 evaluation under the NHPA. ECF No. 133-1 at 14-15.
The Fourth Amended Complaint pleads only an ARPA and APA claim, not an NHPA claim. FAC ¶ 82. The court will not consider an NHPA claim with respect to Antler's Bridge.
2. Motion to Strike Defendants' Declarations and Documents
Plaintiffs move to strike the (1) declaration of Peter Schmidt (Schmidt), an Archaeologist for the Shasta Lake Ranger District for the Shasta-Trinity National Forest, ECF No. 131-2; (2) prior declarations of Kristy Cottini (Cottini), a former District Ranger, and Winfield Henn (Henn), a former Heritage Program Manager/Tribal Relations Program Manager, ECF No. 131-2, Exs. A-E; (3) a memo concluding the "sacred prayer rock" at Buck Saddle was not an archaeological feature, and that "it would be difficult to determine if this sacred prayer rock is a traditional cultural property," AR 443-446; and (4) a letter from Gloria Silverthorne Gomes (Gomes), Chairperson of the United Tribe of Northern California, Inc. dated March 30, 2010, ECF No. 45. Defendant submitted these documents in support of its motion for summary judgment to show there was no truck ramp project at the Nosoni Creek site and no parking lot project at the Rocky Ridge site. ECF No. 131 at 11-12. Plaintiffs argue defendant may not "plug important factual gaps in the record with unsubstantiated statements from former Forest Service officers," Mot. to Strike at 2, ECF No. 134, these documents are an attempt to impermissibly supplement the Administrative Record, and with regard to the Gomes letter, constitute "unauthenticated hearsay." Second Mot. to Strike, ECF No. 140.
a. Contents of Declarations
In Cottini's sworn declaration, she states that the only project the USFS undertook in the proximity of the Nosoni Creek site was the Nosoni Bridge replacement project, for which it conducted the appropriate environmental analysis under the NEPA, and appropriate evaluation under the NHPA. ECF No. 131-2, Ex. A. Cottini's second sworn declaration states that the USFS never authorized a truck ramp project at Nosoni, although there is a pre-existing water take-out point near the bridge, which appears to date back to the 1930s. Id., Ex. C. Lastly, Cottini's third sworn declaration states the USFS has never issued a parking permit at Rocky Ridge for the Jones Valley Resort, authorized an overflow parking lot at the Rocky Ridge site, or allowed for installation of a locked gate at that site. Id., Ex. C.
Henn declares that none of the surveys in the Nosoni Creek area has identified any archeological resources as defined by 16 U.S.C. § 470bb(1), nor have any archeological sites or resources been discovered at the Dekkas site. Id., Ex. E. Henn notes there was some evidence of historic use by Native Americans at the Coonrod Flat site, but no evidence of archeological resources. Id. Henn also declares he does not know of any requirement under section 110 of the NHPA that the USFS must create protection plans on a site-by-site basis, and he believes the Shasta-Trinity Forest Plan does contain guidelines and standards regarding preservation of historic properties consistent with section 110. Id.
In his sworn declaration, Schmidt states he has been employed by USFS as a litigation coordinator since February 2013, and has been assigned to the Shasta-Trinity National Forest in this case. ECF No. 131-2, ¶ 2. Schmidt states he has reviewed the declarations of Cottini, who retired from the USFS in January 2014, and Henn, who retired in 2011. Id. ¶ 5. Schmidt says that after reviewing the record and consulting with others, he found the facts about the Nosoni site contained in Cottini's declarations remained accurate, confirmed by the fact that no documents indicate the USFS undertook a truck ramp project or performed any improvement work on a truck ramp at that site. Id. ¶ 8. Schmidt also found Cottini's assertions regarding the Rocky Ridge site remained true. Id. ¶ 10. Additionally, Schmidt avers he conducted a thorough review of the USFS records to ensure that the Administrative and Supplemental Record were complete, and found no documents evidencing final decisions for truck ramp or parking lot projects at either the Nosoni or Rocky Ridge site. Id. ¶¶ 11 -12. Lastly, Schmidt agrees with Henn's 2010 declaration in concluding that section 110 of the NHPA does not require the USFS to create a protection plan on a site-by-site basis. Id. ¶ 13.
Defendant contends it is not offering the declarations of Cottini, Henn and Schmidt to impermissibly supplement the administrative record for the court's review and determination of the merits of plaintiffs' APA claims. Opp'n, ECF 136 at 12. "Instead, the Forest Service offers the declarations as evidence to support its factual attack on the Court's jurisdiction, including over the Nosoni Bridge truck ramp and Rocky Ridge parking lot claims, because there is no final agency action as to either claim that can be reviewed by the Court under the APA." Id.
b. October 2012 Memo
The October 2012 memo from Shasta Trinity National Forest Heritage Resources Manager Julie Cassidy states that on September 22, 2010, Schmidt and Cassidy went to visit the Buck Saddle site to find the "sacred prayer rock" previously pointed out by Mark Franco to Cassidy and USFS Resource Specialist Cindy Luzietti on January 29, 2007. AR 443-446. The memo states that Schmidt and Cassidy examined the archeological boundaries of the "sacred prayer rock," and the bike trail that was built in close proximity. Id. Photographs of the "sacred prayer rock," bike trail and surrounding proximity are attached to the memo. Id. Cassidy concluded the "sacred prayer rock" was not an archaeological feature, and determined there is no known ethnographic place name for the location of the rock. Id. The memo also states that because of the lack of archival data, it would be difficult to determine if the rock is a traditional cultural property. Id. Finally, the memo states there was no visible displacement of rocks or a ramp on the bike trail. Id.
c. Letter from Gloria Gomes
Lastly, in a March 30, 2010 letter, Gomes identifies herself as a Chairperson of the United Tribe of Northern California, Inc. and a person of Winnemem Wintu descent. ECF No. 45. She requests this suit be dismissed on behalf of those of Winnemem Wintu descent. Id. /////
d. Discussion
The Ninth Circuit has consistently limited the ability of parties to supplement a factual or administrative record. Because the court must always consider at the outset whether it has jurisdiction, it may consider evidence for the limited purpose of determining whether the challenged actions were "final." See Riverhawks v. Zepeda, 228 F. Supp. 2d 1173, 1181 (D. Or. 2002) (denying motion to strike extra-record declarations, with limitation on use of extra-record evidence to preclude judicial determination whether agency's decision is arbitrary and capricious).
The court has reviewed the declarations and finds them to be related to the inquiry of whether agency action was taken sufficient to constitute "final agency action" that supports the court's jurisdiction. The declarations are not impermissible attempts at post-hoc rationalization, because they are not intended and will not be considered as evidence of the defendant's rational decision-making, nor will the court defer to the conclusions contained therein. The court considers them only as evidence relevant to the question of whether the agency action was final, a question relevant to the court's jurisdiction. The motion to strike the declarations is DENIED.
As to the October 2012 memo, AR 339-342, plaintiffs argue it was drafted six years after the Decision Memo regarding the Clikapudi Trail Loop and three years after the litigation began, and is an impermissible "post-hoc" rationale for decision, Mot. to Strike at 3, ECF No. 134. See Sierra Club v. Bosworth, 510 F.3d 1016, 1026 (9th Cir. 2007) ("post-hoc" rationale for decisions based on an inadequate record is improper); Sw. Ctr. for Biological Diversity v. U.S. Forest Serv, 100 F.3d 1443, 1450 (9th Cir. 1996) ("[P]ost-decision information [] may not be advanced as a new rationalization either for sustaining or attacking an agency's decision."). Defendants respond that the October 2012 memo is part of the administrative record and the deadline for plaintiffs to file motions on the adequacy of the record expired on February 28, 2014. Opp'n at 12, ECF No. 136.
However, '[j]udicial review of an agency decision typically focuses on the administrative record in existence at the time of the decision and does not encompass any part of the record that is made initially in the reviewing court." Sw. Ctr. for Biological Diversity, 100 F.3d at 1450. While the Ninth Circuit has crafted narrow exceptions to this rule, see Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005), these exceptions should not undermine the general rule and do not permit an agency "to supply post-hoc rationalizations for its actions." San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 603 (9th Cir. 2014); see also Kunaknana v. Clark, 742 F.2d 1145, 1149 (9th Cir. 1984).
Here, the PA for Compliance with Section 106 for the Clikapudi Trail Loop was issued in July 2006 and the Decision Memo for the project was issued in October 2006, AR 431-442. The October 2012 memo describes an assessment of the area performed in September 2010, nearly four years after the decision regarding the Trail Loop was made. Because the October 2012 memo contains post-hoc rationalizations in support of an earlier agency decision, the memo should be excluded from the court's review. The motion to strike the memorandum is GRANTED.
The Gomes letter is relevant neither to the question of jurisdiction nor the agency's decision making, and the court does not consider it in making its decision. The motion to strike it is GRANTED.
C. Undisputed Facts
The undisputed facts are taken from the Administrative Record ("AR"). The WWT has historically occupied areas within the Shasta-Trinity National Forest, primarily in the McCloud River watershed, Mt. Shasta, and Jones Valley, California. AR 859. It is not a federally recognized Indian tribe. AR 469; 79 Fed. Reg. 4748-02 (Jan. 29, 2014). Regardless, the parties have a longstanding relationship concerning permits and planning of USFS projects. See, e.g., AR 818 (referencing a 1973 permit "to carry forward the traditions of the Wintu Indian tribe"); AR 56 (In 2002 USFS pledge to "focus on closer collaboration between the Forest Service and the Winnemem Wintu on future projects to avoid impacts to identified Native American sites"); AR 920 (2004 letter stating "the Winnemem-Wintu and the Forest Service have had a long and positive working relationship"). Plaintiff Caleen Sisk-Franco was appointed as Spiritual Leader and Headperson of the WWT effective January 1, 2002. AR 850. Plaintiff Mark Franco was also given tribal leadership responsibilities, in August 2002. AR 857. In early 2001, the USFS entered into a Programmatic Agreement ("PA") with the California State Historic Preservation Officer ("SHPO") and the Advisory Council on Historic Preservation ("ACHP"). AR 71. Compliance with the procedures established by an approved programmatic agreement satisfies the agency's NHPA Section 106 responsibilities for all individual undertakings covered by the PA until it expires or is terminated by the SHPO or ACHP. 36 C.F.R. § 800.14. Under the PA, the USFS agreed to implement protective measures for historic properties impacted by undertakings, including excluding historic properties from undertakings, marking the historic properties' boundaries, using buffer zones around the properties, and monitoring the properties. AR 79, 93. The PA requires the USFS to "seek information and advice from 'Native Americans,' and other interested persons likely to have knowledge of or concern about historic properties, and incorporate such information into identification, evaluation, and treatment of historic properties." AR 102. "Native American tribes, organizations, and individuals, and other interested persons who express concerns regarding historic properties related to specific undertakings covered by [the PA] shall be consulted regarding identification, evaluation, treatment, and management of historic properties for those undertakings, pursuant to [the PA]." AR 103.
The AR is several sets of documents with consecutive Bates number pagination.
Section 106 of the NHPA provides a mechanism to promote the Congressional policy that "the historical and cultural foundations of the Nation should be preserved as a living part of our community life . . . ." 16 U.S.C. § 470(b). The mechanism is a command to federal agencies to consider the effect of their actions on registered historic resources:
The head of any Federal agency having . . . jurisdiction over a proposed Federal . . . undertaking . . . shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license . . . take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register [of Historic Places]. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation . . . a reasonable opportunity to comment with regard to such undertaking.16 U.S.C. § 470f.
"Undertaking means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval." 36 C.F.R. § 800.16.
1. Nosoni Creek
In 2000, the USFS began a project to replace the Nosoni Creek Bridge, which is not eligible for inclusion on the National Register of Historic Places. AR 801. In April 2000, the USFS met with plaintiffs Mark Franco and Caleen Sisk-Franco to discuss the project, and plaintiffs shared their concern regarding effects to culturally significant grape vines and use of an old roadbed near a home site. AR 811. The USFS issued a Decision Memo finding "no extraordinary circumstances" "that might cause this action to have significant effect upon the human environment," in May 2000. AR 808. The memo also outlined mitigation measures, including that the wild grape cuttings will be replaced in disturbed areas immediately adjacent to the creek. AR 807. In 2000, after the new bridge had been designed, the USFS discussed the design with the WWT. AR 51.
In August 2001, the WWT discovered that, contrary to the USFS's representations, a large amount of dirt was placed on the old road bed and the home site. AR 52. In addition, a large old oak tree and culturally significant manzanita vines were destroyed and buried. AR 58, 59, 812. Throughout the last three months of 2001, the WWT and USFS discussed mitigation measures. AR 813. While some mitigation was attempted, the site was largely destroyed. See, e.g., AR 55-56 ("The site and its setting, therefore, still had meaning for the Winnemem Wintu until the most recent disturbance [in 2001] during bridge reconstruction."). Consequently, in January 2002, the USFS proposed a meeting to discuss "what we can do on future projects and hopefully reach agreement on what needs to be done on the site." AR 53-54. In an attempt to prevent similar incidents in the future, the WWT and the USFS discussed entering into a Memorandum of Understanding (MOU). See, e.g., AR 815 (email from Winnfield Henn to Sharon Heywood, USFS Officer, saying, "I understand that you have promised Wintu some sort of MOU and this may be the vehicle we need to end the matter that will also satisfy Judy that issue is closed . . . . I think we need something SIGNED by the Wintu that the case is over."). In 2002, the WWT sent a draft MOU to the USFS. AR 193. While the USFS and WWT discussed the MOU over the next several years, see, e.g., AR 859 (Draft Agenda for January 28, 2003 Winnemem Wintu MOU Meeting), it was not executed until 2006. AR 875.
Judy's last name or position is not immediately clear from the record.
2. Dekkas Project
The Dekkas site is a "rock island" that rises above the McCloud River. The WWT had permits to use the land as a "religious, doctoring, and herb gathering" site, dating back to 1973. AR 816-844. The site is used primarily for sacred ceremonies and healing activities. AR 864. The most recent permit was issued by USFS to the WWT in 1995; it expired in 2005. AR 845. The permit is not exclusive, and is only required for use when there are 75 or more people present at one time, such as for ceremonial gatherings. AR 862. In June 2003, the USFS signed a Decision Notice and Finding of No Significant Impact (FONSI) for the Gilman Road Shaded Fuelbreak ("Dekkas Project"), which involved cutting some vegetation and clearing brush near the Dekkas site. AR 217-226.
In a 2008 meeting between the WWT and USFS, the group discussed options for the WWT's use of the Dekkas site. The USFS said it would look into possibilities of a sale to the WWT or its use and control of a small area of the site. AR 1007.
3. Coonrod Flat
Coonrod Flat is a National Historic Place as of 2007, located east of Mt. Shasta in Siskiyou County. AR 336, 337, 930-944. It is a traditional cultural property, "associated with events of a spiritual or ceremonial nature and as a place of mythological importance." AR 939. It is significant to the WWT "as a ceremonial area and a doctoring place," AR 934, and the WWT has held a ceremony there annually in August since the 1970s. AR 904, 922, 934. In June 2002, the WWT sent a letter to the USFS detailing "desecration" to the site with evidence of intrusion and use by non-WWT members. AR 904. Mark Franco, on behalf of the WWT, requested a meeting to discuss protecting the site. Id. In August 2003, Franco also requested an extension of the permit issued allowing the WWT to hold the August ceremony. AR 924.
The USFS had issued a permit to Wesley Truax, not a party to this action, in April 2003. AR 908-916. The permit was effective until December 2009 and allowed Truax to graze his livestock and cattle on the land. AR 909. In July 2004, the USFS responded to Franco's August 2003 request, stating that while the USFS could not grant an exclusive use permit for Coonrod Flat, "fencing the Coonrod area to keep cattle out of camping and ceremonial areas is possible to do," noting "we need to work with the holder of the grazing permit in that area to accomplish this." AR 921. In October 2007, an Archaeological Renaissance Report was issued addressing a "grazing undertaking," which would continue the permit, authorizing 112 cow/calf pairs and three bulls to graze from July through October each year. AR 956. The Report's recommendations to exclude cattle from the archaeological sites were to: 1) make sure developed water sources are located away from recorded sites and 2) use salting sites to lure cattle away from site locations. AR 959. Truax's permit was renewed in 2010, through 2019. AR 962-63. In August 2010, the special use permit for the August ceremonial activity was issued to the WWT. AR 970.
4. Clikapudi/Buck Saddle
Buck Saddle is at the top of a ridge, and there are at least 13 prehistoric and historic sites in the general area. AR 263. In 2004, the USFS began planning a mountain bike trail that looped off the existing Clikapudi Trail at Buck Saddle. In October 2006, the USFS ///// signed a Decision Memo to add an approximately one-mile trail to the existing Clikapudi Trail Loop. AR 328-338.
In July 2006, a PA for compliance with Section 106 was issued for the project, noting the existence of an historic property, the Jones Valley/Buck Saddle. AR 431. The agreement noted that the proposed bike trail would not impact the historic property, had been specifically designed to avoid the site, and no activity would occur in the site boundary. Id.
5. Rocky Ridge
Rocky Ridge was included on the National Register of Historic Places in 2007. AR 1000. Beginning in 2006, Jones Valley resort sought to use the Rocky Ridge Point campground for overflow parking. AR 996. The USFS issued an Archaeological Reconnaissance Report for the parking lot expansion project in February 2009. AR 1009. The report notes a "known prehistoric archaeological site" at the proposed resort location, and states that "all earth-moving activities would occur outside the boundary, to the east of the site." AR 1010. "The [prehistoric site] will require monitoring during the construction process." Id. No Native American consultation, including with the WWT, was conducted for this project. AR 1011.
6. Antler's Bridge
In March 2006, the U.S. Department of Transportation and the Federal Highway Administration proposed to replace Antler's Bridge in Shasta County, California and filed an Historic Property Survey Report. AR 1047. In January 2010, while contractors for CalTrans were excavating the site, cultural artifacts were discovered. AR 509. Excavation ceased, and Mark Franco and representatives of the California Department of Transportation (CalTrans), which was responsible for the project, the Office of Historic Preservation and the USFS met to discuss next steps. AR 380, 382. In October 2010, the USFS issued an Archaeological Resources Protection Act (ARPA) permit authorizing CalTrans to process and screen soils removed from the Antler's Bridge project in January 2010, and from additional excavation areas, to determine whether there are any archaeological resources in the soils and, if so, to take appropriate action under the ARPA to preserve them. See AR 422, 538, 542, 544-46, 689.
II. STATUTORY FRAMEWORK
A. NEPA
The NEPA is a procedural statute enacted to ensure the federal government makes major decisions significantly affecting the environment only after considering the impacts of those decisions and exploring possible alternatives. 42 U.S.C. §§ 4321, 4331; 40 C.F.R. § 1501.1. Its main purpose is to ensure that federal agencies take a "hard look" at the environmental consequences of their proposed actions in advance of a final decision to proceed. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51 (1989); Vermont Yankee Nuclear Power Corp. v. Nat'l Res. Def Council, 435 U.S. 519, 558 (1978). Although NEPA establishes procedures by which agencies must consider the environmental impacts of their actions, it does not dictate the substantive results of agency decision-making. Robertson, 490 U.S. at 350; Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 473 (9th Cir. 2000) ("NEPA does not mandate particular substantive results, but instead imposes only procedural requirements.") (quotations and citation omitted).
The NHPA was repealed on December 19, 2014, by the National Park Service and Related Programs Act, Pub. L. No. 113-287, 128 Stat. 3094 (codified in various sections of title 54 of the United States Code), "except with respect to rights and duties that matured, penalties that were incurred, or proceedings that were begun before the date of enactment of [the National Park Service and Related Programs Act]." Pub. L. No. 113-287, sec. 7. The parties agreed at hearing the repeal does not render the NHPA inapplicable to this case.
"Section 106 of the NHPA requires federal agencies to consider the effect of any undertaking on any site that is eligible for inclusion in the National Register of Historic Places before expending federal funds or approving any licenses in connection with the undertaking." Winnemem Wintu Tribe v. U. S. Dep't of Interior, 725 F. Supp. 2d 1119, 1138 (E.D. Cal. 2010) (citing 16 U.S.C. §§ 470(b)(4) and 470f). For federal undertakings at historic sites eligible for the National Register, the NHPA requires federal agencies to consult with Indian tribes that attach religious or cultural significance to the affected properties. See 54 U.S.C. § 302706(a)-(b); 36 C.F.R. § 800.2(c)(2). "Section 106 of NHPA is a 'stop, look, and listen' provision that requires each federal agency to consider the effects of its programs." Muckleshoot Indian Tribe v. U. S. Forest Serv., 177 F.3d 800, 805 (9th Cir. 1999). The obligation to consult with Indian tribes extends only to federally recognized Indian tribes. See id.; 54 U.S.C. § 300309 (defining "Indian Tribe" or "tribe" as one "which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians"); 36 C.F.R. § 800.16(m) (same); see also id. § 800.2(c)(2)(ii)(C) ("Consultation with an Indian tribe must recognize the government-to-government relationship between the Federal Government and Indian tribes"); 79 Fed. Reg. 4748-02 (Jan. 29, 2014) (listing all eligible Indian tribes). Non-federally recognized tribes such as the WWT are entitled only to notice and information, as interested members of the public. 36 C.F.R. § 800.2(d). This court's disposition of the parties' cross-motions on the NHPA claim turns on whether the USFS complied with its responsibilities under Section 106 of the NHPA. Under 54 U.S.C. § 306108, the USFS is required to "take into account the effect of [an] undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register."
C. APA
This court may consider violations of the NHPA and NEPA only within the confines of the APA. Sisseton-Wahpeton Oyate v. U.S. Dep't of State, 659 F. Supp. 2d 1071, 1080 (D.S.D. 2009). Under the APA, the court's review is limited to the administrative record. 5 U.S.C. § 706. When reviewing agency action under the APA, the court "will reverse the agency action only if the action is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law." Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir. 2009) (citing 5 U.S.C. § 706(2)). The burden of proof is on the plaintiffs. Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976); Clyde K. v. Puyallup Sch. Dist. No. 3, 35 F.3d 1396, 1399 (9th Cir. 1994), superseded by statute on other grounds as stated in L.M. v. Capistrano Unified School Dist., 556 F.3d 900, 910 (9th Cir. 2008).
Review under the arbitrary and capricious standard is narrow, and the court may not substitute its judgment for that of the agency. See Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc), overruled on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citing Earth Island Inst. v. U. S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir. 2006)). The agency's decision should only be reversed "if the agency relied on factors Congress did not intend it to consider, 'entirely failed to consider an important aspect of the problem,' or offered an explanation 'that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'" Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105, 1110 (9th Cir. 2015) (citations omitted). To overturn any decision by the USFS here, the court must find "a clear error of judgment." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).
Claims based on a failure to act under 5 U.S.C. § 706(1) can be sustained where the failure is "in the face of clear statutory duty or is of such a magnitude that it amounts to an abdication of statutory responsibility." Franco v. U.S. Dep't of the Interior, No. CIV S-09-1072, 2012 WL 3070269, at *12 (E.D. Cal. July 27, 2012) (citing ONRC Action v. BLM, 150 F.3d 1132, 1137 (9th Cir. 1998) (citation omitted); see also Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 55 (2004) ("claim [under the APA] can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take").
III. LEGAL STANDARD
A court must grant a motion for summary judgment in whole or in part, "if . . . there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). This is a "threshold inquiry" into whether a trial is necessary at all, that is, whether "any genuine factual issues . . . properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The court does not make findings of fact or determine the credibility of witnesses, id. at 255; rather, it must draw all inferences and view all evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
Even after the 2010 amendment to Rule 56, it is appropriate to rely on cases decided before the amendment took effect, as "[t]he standard for granting summary judgment remains unchanged." Fed. R. Civ. P. 56, notes of advisory comm. on 2010 amendments. --------
The moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of the [record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party to "go beyond the pleadings" and "designate specific facts" in the record to show a trial is necessary to resolve genuine disputes of material fact. Id. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.
IV. ANALYSIS
A. Claim One: Violation of NHPA, NEPA, and APA (Damage to Nosoni Creek)
Plaintiffs allege that the USFS violated the NHPA by not designating the Nosoni Bridge as an historic site, not conducting a NHPA Section 106 evaluation for the project, and approving the project without consulting with them. FAC ¶ 52. They further allege defendants violated the NEPA by failing to initiate a NEPA process and failing to conduct an Environmental Assessment with regard to the "major federal action" of building a truck ramp on the Nosoni Creek site. Id. ¶ 53. The government argues each of the claims is time-barred, and no such truck ramp exists. The government also argues the May 2000 Decision approving the Nosoni Creek Bridge Replacement Project, AR 806-09, triggered the statute of limitations for that project; plaintiffs argue the MOU executed in 2006, AR 875, was the final agency action.
Plaintiffs were required to file any APA claims related to the Nosoni Bridge project within six years from the date of the decision by the USFS. 28 U.S.C. § 2401; Gros Ventre Tribe v. U.S., 469 F.3d 801, 814 n.12 (9th Cir. 2006). A claim against an administrative agency "first accrues," within the meaning of § 2401(a), as soon as but not before the person challenging the agency action can institute and maintain a suit in court. See, e.g., Crown Coat Front Co. v. U.S., 386 U.S. 503, 510-11 (1967); Citizens Legal Enforcement & Restoration v. Connor, 762 F. Supp. 2d 1214 (S.D. Cal. 2011), aff'd, 540 F. App'x 587 (9th Cir. 2013).
In this case, on January 14, 2002, Robert Hammond, a District Ranger with the USFS, sent a letter to Florence Jones, the WWT's former spiritual leader, and Mark Franco. In the letter, he suggests a meeting "in order to reach closure on the Nosoni Creek Bridge project," and "to discuss what we can each do differently on future projects and hopefully reach agreement on what needs to be done on the site." AR 45. Hammond notes that USFS engineers notified him of a "field meeting on November 1, 2001 for the purposes of inspecting the Nosoni Creek Bridge placement - their final inspection." Id. "The outcome of the final inspection was that he had completed all Forest Service contract requirements." Id. On August 29, 2002, Ranger Cottini sent a letter to the WWT noting that Mark Franco met with the USFS on May 20, 2002, "to reach agreement on several unresolved issues concerning this project." AR 55-56. The letter states that during the meeting, "Franco noted that there is nothing left that can be restored . . . it was agreed by all present that mitigation would need to focus on closer collaboration between the Forest Service and Winnemem Wintu on future projects to avoid impacts to identified Native American sites." Id. at 56. Based on the record, the WWT had notice of the failure to include them in consultation as early as 2000 when the Decision Memo was issued, throughout 2001 when they were consulted about the project, and as late as 2002. See, e.g., AR 31, 292. The meetings and MOU issued after 2002 were focused on mitigation efforts for future projects, not Nosoni Bridge. At best, the statute of limitations lapsed in 2008, during the project's closure stage. In a similar case, the six-year statute of limitations for an action challenging USFS use of Custer National Forest ("CNF") lands by wild horses accrued on the date the USFS gave notice of the final environmental impact statement in the Federal Register, rather than on the date plaintiff became aware of the action. Cloud Found., Inc. v. Kempthorne, 546 F. Supp. 2d 1003, 1011 (D. Mont. 2008). In Cloud Foundation, a sister court considered a challenge to the alleged failure of the USFS to acknowledge historical use of CNF in its "Forest Plan." The USFS defendants argued the claims were time-barred because the time for filing them commenced when the Forest Plan was published in the Federal Register in 1987, not when plaintiffs objected to the plan in 2004, learned of the USFS's alleged refusal to modify that plan in 2005 or 2006, or during the creation of a memorandum of understanding. The court agreed with defendants, finding the statute of limitations began to run in 1987 when the CNF Forest Plan Record of Decision was published in the Federal Register in 1987, not when plaintiff, despite not having formed as an entity in 1987, later became aware of the plan. Here, as in Cloud Foundation, the claims are time-barred, and summary judgment is GRANTED in favor of defendant.
In addition, plaintiffs have not produced any evidence showing a truck ramp project has ever existed. A search of the record reveals nothing, and defendant has provided sworn declarations averring no truck ramp project exists. Without any final agency action to review, the court GRANTS summary judgment to defendant as to this claim on this separate ground as well.
B. Claim Two: Violation of NHPA and the APA (Interference with Winnemem's Use of Cultural Property at Dekkas)
Plaintiffs' allegation that the cutting of the old-growth manzanita is a violation of the PA does not state a claim of NHPA violation. First, however, contrary to defendant's argument, this claim is not time barred. In June 2003, the USFS published a Decision Notice and Finding of No Significant Impact (FONSI) for the Gilman Road Shaded Fuelbreak ("Dekkas Project"). AR 226-30. This triggered the limitations statute. "'Publication in the Federal Register is legally sufficient notice to all interested or affected persons regardless of actual knowledge or hardship resulting from ignorance.'" Shiny Rock Mining Corp. v. U.S., 906 F.2d 1362, 1364 (9th Cir. 1990) (quoting Friends of Sierra R.R., Inc. v. ICC, 881 F.2d 663, 667-68 (9th Cir. 1989)). Within six years, plaintiffs pleaded in their original April 2009 complaint that the USFS acted "in direct violation of [the PA]" and "failed to include the Winnemem in the planning of these acts of deliberate desecration." Original Compl. ¶¶ 36, 37.. The Dekkas claims alleged in the operative fourth amended complaint therefore relate back to the timely original complaint and are not time-barred. See Fed. R. Civ. P. 15(c).
Turning to the merits, this court's previous order dismissed the claim as previously pled with leave to amend because "plaintiffs do not allege that any portion of the Dekkas Site is eligible for inclusion in the National Register." Winnemem, 725 F. Supp. 2d at 1140. Plaintiffs still do not allege such facts, saying only that the USFS 1) violated the NHPA by not consulting with them about the Dekkas project and 2) failed to follow its proposed, written mitigation plans, as memorialized in the PA. Fourth Am. Compl. at 7-8. Under both NEPA and NHPA, when an agency has entered into a Memorandum of Agreement, "it has voluntarily assumed an obligation that is enforceable . . . ." Tyler v. Cisneros, 136 F.3d 603, 608-09 (9th Cir. 1998) (citations and quotation marks omitted); see also 36 C.F.R. § 800.6(c) ("A memorandum of agreement . . . shall govern the undertaking and all its parts.")). Plaintiffs participated in the planning process for the Dekkas project, meeting with the USFS in June 2002 to discuss the project. See Winnemem, 725 F. Supp. 2d at 1142; AR 214 (meeting notes); AR 229 (FONSI stating WWT had been consulted about the project).
Moreover, because the old-growth manzanita cannot be restored, however understandably distressing the destruction is, plaintiffs' claims are moot. See Headwaters, Inc. v. Bureau of Land Management, 893 F.2d 1012, 1015-16 (9th Cir. 1990) ("Where the activities sought to be enjoined have already occurred, and the [] courts cannot undo what has already been done, the action is moot."). Summary judgment is GRANTED as to this claim in favor of defendant.
C. Claim Three: Violation of NHPA and APA (Coonrod Cultural Site)
Plaintiffs argue the issuance of a grazing permit for the Coonrod site is evidence of the failure of the USFS to protect an historic property from adverse effects of an undertaking, and therefore violates the NHPA. FAC at 13-14. Defendant responds that this claim is moot because a new permit was issued in 2010, superseding the 2005 permit, and a Section 106 assessment was conducted in 2007. Def.'s MSJ at 10.
Defendant's argument as to mootness is unpersuasive. To demonstrate mootness in an NHPA case such as this one, defendant must meet a heavy burden. Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001). When a case is challenged as moot, "[t]he question is whether there can be any effective relief." Nw. Envt'l Def. Ctr. v. Gordon, 849 F.2d 1241, 1244-45 (9th Cir. 1988) (citation and quotation marks omitted); see also Sierra Club v. U.S. Forest Serv., 93 F.3d 610, 614 (9th Cir. 1996) ("An action is moot if the court cannot grant any effective relief." (citation omitted)). Here, that a new permit was issued does not extinguish plaintiff's potential for effective relief. The alleged harm is ongoing, and therefore the allegation defendants have failed to protect the historic site remains viable. Specifically, the new permit allows for grazing on the land, which is the alleged harm of which plaintiffs complain. That permit may be enjoined, which would be effective relief. See Slockish v. U.S. Fed. Highway Admin, 682 F. Supp. 2d 1178, 1184 (D. Or. 2010) (finding NHPA claim not moot though project completed because of "ongoing harm" that can be mitigated).
The Section 106 analysis conducted in 2007, see AR 955, also does not extinguish this claim. Under the terms of the PA, defendants were required to comply with 36 C.F.R. § 800 for undertakings that may adversely affect historic properties and consult with the public, or individuals and organizations with a demonstrated interest in the undertaking due to their concern, before performing an undertaking on the land. Here WWT had a demonstrated interest and defendant did not consult with it. AR 78. This is a "failure to act" claim in that defendant "failed to take a discrete agency action that it is required to take," Norton, 542 U.S. at 64 (emphasis omitted), making injunctive relief available and appropriate.
Finding the claim is not moot, the court turns to the merits, that is, the sufficiency of the 2007 Section 106 analysis. An NHPA analysis for the Section 106 process requires an agency
to make a reasonable and good faith effort to identify historic properties; determine whether identified properties are eligible for listing on the National Register . . . ; assess the effects of the undertaking on any eligible historic properties found; determine whether the effect will be adverse; and avoid or mitigate any adverse effects. The [agency] must confer with the State Historic Preservation Officer. . . and seek the approval of the Advisory Council on Historic Preservation . . . .Te-Moak Tribe of W. Shoshone of Nevada v. U.S. Dep't of Interior, 608 F.3d 592, 607 (9th Cir. 2010) (citation and quotation marks omitted). 36 C.F.R. § 800.1(a) further requires an agency to consult with "parties with an interest in the effects of the undertaking on historic properties, commencing at the early stages of project planning."
Specifically, once an historic property has been identified, the agency shall "[s]eek information, as appropriate, from consulting parties, and other individuals and organizations likely to have knowledge of, or concerns with, historic properties in the area, and identify issues relating to the undertaking's potential effects on historic properties." 36 C.F.R. § 800.4(a)(3). Consulting parties are defined to include federally recognized Indian tribes, id. § 800.2(c)(2), see also supra page 16, certain individuals and organizations with demonstrated interest in the undertaking due to their concern with the undertaking's effects on historic properties, id. § 800.2(c)(5), as well as the public, id. § 800.2(d).
Here, Coonrod Flat is a National Historical Site as of 2007, meaning that consideration and consultation with interested parties is required under the NHPA before an undertaking can commence. And even though the WWT is not federally recognized, it still has a sufficiently demonstrated and documented interest in Coonrod Flat, of which the USFS had knowledge, AR 336, to give it consulting status as to this property under either 36 C.F.R. § 800.2(c)(5) (demonstrated interest) or § 880.2(d) (the public). Thus, even though a Section 106 analysis was conducted in 2007, the requirements of NHPA were still not satisfied, as a consulting party as defined under 36 C.F.R. § 800.2 was not in fact consulted. And no Section 106 analysis was conducted for Coonrod Flat other than the one in 2007, which failed to fulfill the consultation requirement when the 2010 permit was issued.
Given Coonrod Flat is a National Historical Site as of 2007, yet a Section 106 analysis fulfilling the consulting requirement of NHPA was never conducted, and given plaintiffs have shown ongoing damage, plaintiffs are entitled to summary judgment and the court GRANTS their motion to this extent.
D. Claim Four: Violation of NHPA, NEHA, and the APA (Damage to Buck Saddle Prayer Site)
In 2004, the USFS began planning a mountain bike trail that looped off the existing Clikapudi Trail. In October 2006, the USFS signed a Decision Memo to add an approximately one-mile trail to the existing Clikapudi Trail Loop at the Buck Saddle site. AR 328-38. Plaintiffs argue defendant's failure to develop a protection plan or consult with the WWT before permitting the bike path violates the NHPA, and the failure to perform any environmental analysis on the effects of the bike path violates the NEPA. They argue the USFS was aware of the WWT's interest in the area, and should have, under the PA and NHPA, consulted with the WWT before issuing its Decision Memo. AR 876. Defendant says it complied with the requirements of the NHPA and the NEPA for the bike trail project and conducted a proper Section 106 analysis. Def.'s Mot. at 10-11.
An agency has a general duty to "provide the public with information about an undertaking and its effects on historic properties and [to] seek public comment and input." 36 C.F.R. § 800.2(d)(2). An undertaking has an "effect" when the undertaking "may alter characteristics of the property that may qualify the property for inclusion in the National Register . . . [including] alteration to features of a property's location, setting, or use . . . ." Id. § 800.16(i). An "effect" is "adverse" when it may "diminish the integrity of the property's location, . . . setting . . . , feeling, or association." Id. § 800.5(a)(1). The regulations specify that certain individuals and organizations, known as "consulting parties," are to be more formally involved in the agency's NHPA review. Id. § 800.16(i). In particular, the agency must invite the state historic preservation officers, tribal historic preservation officers, local government representatives for those entities that have jurisdiction over the area at issue, and the project applicant to participate in the NHPA process as consulting parties. Id. § 800.2(a)(4). In addition to those who are consulting parties as a matter of right, other interested individuals or organizations "may participate as consulting parties due to the nature of their legal or economic relation to the undertaking . . . or their concern with the undertaking's effects on historic properties," id. § 800.2(c)(5), if they request participation in writing and the agency determines they should be granted consulting party status, id. § 800.3(f)(3). Section 800.2(c) identifies the intended participants in the Section 106 process. These participants are divided into two classes, consulting parties and interested persons. Consulting parties may include the Agency Official, SHPO, and the Advisory Council. Id. § 800.2(c)(1).
In July 2006, a PA for Compliance with Section 106 was issued for the Clikapudi project. AR 431-432. The Agreement notes the existence of an historic property, the Jones Valley/Buck Saddle, and states that the proposed bike trail will not impact the area, has been designed to avoid the site, and no activity will occur in the site boundary. This conclusion is consistent with a finding that an undertaking is not "adverse." See 36 C.F.R. § 800.5(a)(1) ("An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify . . . for inclusion in the National Register in a manner that would diminish the integrity of the property . . . ."); see also Neighborhood Ass'n of The Back Bay v. Fed. Transit Admin., 393 F. Supp. 2d 66, 74 (D. Mass. 2005) (the finding of "no adverse effect" means an undertaking does not meet the criteria of an "adverse effect" under 36 C.F.R. § 800.5(b)). The Ninth Circuit has affirmed a district court's finding that, when there is no adverse effect found by the agency in developing the project, the court "only needed to consider the views of interested parties, and it did so." Presidio Golf Club v. Nat'l Park Serv., 155 F.3d 1153, 1163-64 (9th Cir. 1998). The Ninth Circuit considered a claim similar to that in this case in Muckleshoot Indian Tribe, 177 F.3d at 800. There, plaintiff argued the USFS "ignored its claims that numerous other places of historical importance were situated" on the land proposed for an undertaking. Id. at 806. The Ninth Circuit found that because "the Forest Service continued to seek the requested information over a period of time," "and the Forest Service had previously conducted research of its own to identify relevant traditional cultural properties," it was "unable to conclude that the Forest Service failed to make a reasonable and good faith effort to identify historic properties." Id. at 807.
Here, the USFS conducted a Section 106/NEPA categorical exclusion analysis for the project, and plaintiffs have not shown any error in that analysis. See AR 437. NHPA consultation was not required because, based on the scope of the project, no historic properties would be affected. AR 431. See La Cuna De Aztlan Sacred Sites Prot. Circle Advisory Comm. v. U.S. Dep't of the Interior, No. 11-00400, 2013 WL 4500572, at *9 (C.D. Cal. Aug. 16, 2013), aff'd, 603 F. App'x 651 (9th Cir. 2015) (granting summary judgment to defendants who adequately sought comment from public, and plaintiff, not a recognized Indian tribe, not entitled to consultation). There is no evidence the Section 106 analysis conducted was not supported by proper analysis. Summary judgment is GRANTED in favor of defendant as to the Buck Saddle claim.
E. Claim Five: Violation of NHPA and the APA (Damage to Rocky Ridge)
Plaintiffs allege defendant has not complied with NHPA Section 106 in allowing Jones Valley Resort to use the Rocky Ridge campground, an historic site, as an overflow parking lot. Fourth Am. Compl. ¶¶ 41, 74. Defendant argues no such Rocky Ridge overflow parking project exists. Def.'s Mot. at 12. The ARR for Rocky Ridge campground states that the area "has been used as an overflow parking area for Jones Valley Resort." AR 451. This is consistent with the notes of a January 2007 meeting of the WWT and USFS to discuss a proposal to include the campground in Jones Valley Resort's permit as an overflow parking lot, "which [it has been] for several years." AR 465. The record shows the WWT has been consulted in considering whether to allow for parking in the future. AR 476 (representatives of USFS and WWT "agree that use of the loop should involve consultation of the Wintu Tribe"). More critically, however, there is no evidence of a permit for overflow parking in the record.
As discussed above, under the APA, a plaintiff must establish final agency action for this court to act on a claim. Final agency action must "mark the consummation of the agency's decisionmaking process - it must not be of a merely tentative or interlocutory nature" and "the action must be one by which rights or obligations have been determined, or from which legal consequences will flow." Fairbanks N. Star Borough v. U.S. Army Corps of Eng'r, 543 F.3d 586, 597 (9th Cir. 2008) (holding also that "agency action that does not impose an obligation, deny a right, or fix some legal relationship is not judicially reviewable due to lack of finality" (internal quotations and citations omitted)). "[J]ust as the 'final agency action' in a NEPA claim must be a 'major federal action,' the 'final agency action' in an NHPA claim must be a 'federal undertaking.'" Karst Envtl. Educ. & Prot., Inc. v. E.P.A., 475 F.3d 1291, 1296 (D.C. Cir. 2007); Comm. for Pres. of Seattle Fed. Reserve Bank Bldg. v. Fed. Reserve Bank of San Francisco, No. C08-1700, 2010 WL 1138407, at *4 (W.D. Wash. Mar. 19, 2010) (cautioning against finding "every incremental step toward a final agency action" reviewable). Without any final action or undertaking to review, the court GRANTS summary judgment on this claim to defendant. See San Carlos Apache Tribe v. U.S., 272 F. Supp. 2d 860, 886 (D. Ariz. 2003), aff'd, 417 F.3d 1091 (9th Cir. 2005) (dismissing NHPA where "plaintiffs fail to identify the final agency action that is reviewable under the APA").
F. Claim Six: Violation of ARPA and the APA (Interference with and Failure to Protect Archaeological Resources at the Antler's Bridge Site)
In plaintiffs' fourth amended complaint, they allege the following final agency action with respect to their sixth claim: 1) the failure of the USFS to consult with the WWT after the inadvertent discovery of potentially historically significant land during the excavation of the Antler's Bridge site, and 2) exclusion from USFS meetings to resolve the findings, in violation of the ARPA permit. Fourth Am. Compl. ¶ 79.
The ARPA provides that "[n]o person may excavate, remove, damage, or otherwise alter or deface" any archaeological resource located on public or Indian lands unless "pursuant to a permit." 16 U.S.C. § 470ee(a). Under the ARPA, federally recognized Indian tribes must be notified about an ARPA permit that might harm sites of religious or cultural importance. 43 C.F.R. § 7.7(a)(1). Specifically, an "Indian tribe" is "[a]ny tribal entity which is included in the annual list of recognized tribes published in the Federal Register by the Secretary of the Interior." Id. § 7.3(f)(1). Other, non-federally recognized Native American groups "may" be provided notice of an ARPA permit. 43 C.F.R. § 7.7(a)(2). It is undisputed the WWT is not on the list of federally recognized Indian tribes.
Here, the discovery at Antler's Bridge was made in January 2010, and the ARPA permit was issued in October 2010. A meeting was held regarding the late discovery in February 2010. Mark Franco represented the WWT at the meeting, with representatives from USFS also attending. AR 380-402. The agenda indicates a scheduled time for "Native American Concerns" presented by Mark Franco, as well as agenda items for proposed mitigation measures and construction needs going forward. Id. The record demonstrates the WWT was consulted regarding the project and provided input about the protection of cultural resources as intended by ARPA, even though notice to the WWT in this instance was not mandatory.
Summary judgment is GRANTED for defendants as to this claim.
G. Remedies
The USFS asserts plaintiffs seek the following forms of relief that are unavailable and go beyond the court's jurisdiction to grant: granting plaintiffs de facto "consulting party status" on all USFS undertakings under the NEPA and NHPA, granting plaintiffs' exclusive use of sacred sites, and a determination that cultural items held by the USFS belong to plaintiffs and should be repatriated to them. Plaintiffs request "[a] declaratory judgment stating that Defendant's acts and omissions violate the NHPA; [and] a preliminary and permanent injunction against further damage to the Coonrod Cultural Site." Fourth Am. Compl. ¶ 66.
The court does not have the authority to circumvent federal tribal recognition processes and allow for de facto federal recognition of the WWT in any grant of relief. It is, however, within the court's authority to fashion a remedy that fits the particular facts of the case before it. In light of the court's granting of plaintiffs' motion for summary judgment on claim three, the court may consider enjoining the Coonrod Flat permit and require the USFS to engage in consultation with the WWT before further or continued grazing based on the permit. See Muckleshoot Indian Tribe, 177 F.3d at 815 (enjoining further activities on land until USFS satisfies NHPA and NEPA obligations); Confederated Tribes & Bands of the Yakama Nation, 2015 WL 1276811, at *9 (ordering agency to set aside findings and reengage in consultation process before pursuing undertaking). That said, under NEPA and NHPA, a grant of injunctive relief is an extraordinary remedy that involves the balancing of equities and requires a fact specific analysis of the circumstances of an individual case. Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13 (1982). Injunctions are equitable remedies; they do not issue "as a matter of course." Id. at 311. And a violation of NEPA or the NHPA alone does not compel the issuance of an injunction. Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1496 (9th Cir. 1995), abrogated on other grounds by Wilderness Soc'y v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011).
Accordingly, the court orders briefing on the issue of the appropriate remedy on claim three, including the effect of enjoining the Coonrod Flat permit.
V. CONCLUSION
Defendant's motion for summary judgment is GRANTED as to claims one, two, four, five and six. Plaintiffs' motion is GRANTED as to claim three (Coonrod Flat). Plaintiffs' motion to strike the October 2012 memo on Clikapudi Trail Loop is GRANTED. Plaintiffs' remaining motions to strike are DENIED. ///// /////
Simultaneous opening briefs on the appropriate remedy on claim three are due by close of business on May 6, 2016, with any responses due June 3, 2016. The court will notify the parties if it requires a hearing on this matter.
IT IS SO ORDERED. DATED: March 31, 2016.
/s/_________
UNITED STATES DISTRICT JUDGE