benjamin b. wagner united states attorney lynn trinka … · case no. 2:09 -cv 01072 kjm kjn andum...

Memorandum In Support of United States

Forest Service’s Motion for Summary Judgment

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

Attorneys for United States Forest Service

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

WINNEMEM WINTU TRIBE, in their tribal and individual capacities; CALEEN SISK, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant.

Case No. 2:09-cv-01072 KJM KJN MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNITED STATES FOREST SERVICE’S MOTION FOR SUMMARY JUDGMENT Date: March 27, 2015 Time: 2:00 p.m. Place: Courtroom 3, 15th Floor 501 I Street, Sacramento Judge: Hon. Kimberly J. Mueller

BENJAMIN B. WAGNER United States Attorney LYNN TRINKA ERNCE Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2720

Case 2:09-cv-01072-KJM-KJN Document 131-1 Filed 12/18/14 of 20

TABLE OF CONTENTS

Page


Forest Service’s Motion for Summary Judgment i

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

I. INTRODUCTION ............................................................................................................................. 1

II. APPLICABLE STATUTORY FRAMEWORK................................................................................ 1

A. National Historic Preservation Act (“NHPA”) ...................................................................... 1

B. National Environmental Policy Act (“NEPA”) ..................................................................... 2

C. Archaeological Resources Protection Act (“ARPA”)............................................................ 2

III. APPLICABLE STANDARDS FOR REVIEW OF CLAIMS ........................................................... 3

A. Review Under The Administrative Procedure Act (“APA”) ................................................. 3

B. Standing ................................................................................................................................. 4

C. Mootness ................................................................................................................................ 4

IV. ARGUMENT .................................................................................................................................... 5

A. The Nosoni Creek Claims Are Time-Barred And Fail On Their Merits ............................... 5

1. Claims About The Nosoni Creek Bridge Are Time-Barred And Meritless ............... 5

2. There Is No Nosoni Bridge Truck Ramp Project. ...................................................... 7

B. Plaintiffs’ Claims On The 2003 Gilman Road Shaded Fuelbreak Project Are Time-Barred And They Also Fail On The Merits. ......................................................... 8

C. The Coonrod Flat Claim Is Moot. .......................................................................................... 9

D. The Forest Service Satisfied NHPA/NEPA For The Clikapudi Trail Loop At Buck Saddle. ................................................................................................................... 10

E. There Is No Rocky Ridge Parking Lot Or Overflow Parking Project. ................................ 12

F. The Forest Service Was Not Required To Consult With Plaintiffs On The Antler’s Bridge ARPA Permit, But Gave Plaintiffs The Required Notice And More. ....... 12

V. CONCLUSION ................................................................................................................................ 15


TABLE OF AUTHORITIES

Page


Forest Service’s Motion for Summary Judgment ii

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

FEDERAL CASES

Churchill County v. Babbitt, 150 F.3d 1072 (9th Cir. 1998) .......................................................................................4

Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971) .......................................................................................................3

City & County of San Francisco v. United States, 130 F.3d 873 (9th Cir. 1997) .........................................................................................3

Clyde K. v. Puyallup Sch. District Number 3,

35 F.3d 1396 (9th Cir. 1994) .........................................................................................3

Cook Inlet Treaty Tribes v. Shalala, 166 F.3d 986 (9th Cir. 1999) .........................................................................................4

Earth Island Institute v. United States Forest Serv.,

442 F.3d 1147 (9th Cir. 2006) .......................................................................................3

Fairbanks North Star Borough v. United States Army Corps of Eng’rs, 543 F.3d 586 (9th Cir. 2008) ...................................................................................4, 12

Franco v. United States Department of Interior,

2012 WL 3070269 (E.D. Cal. July 27, 2012) ......................................................1, 4, 11

Gator.com Corp. v. L.L. Bean, 398 F.3d 1125 (9th Cir. 2005) .......................................................................................4

Gros Ventre Tribe v. United States,

469 F.3d 801 (9th Cir. 2006) .........................................................................................5

Kleppe v. Sierra Club, 427 U.S. 390 (1976) .......................................................................................................3

Lands Council v. McNair,

537 F.3d 981 (9th Cir. 2008) .........................................................................................3

League of Wilderness Defenders v. United States Forest Serv., 549 F.3d 1211 (9th Cir. 2008) .......................................................................................3

Marsh v. Oregon Natural Resources Council,

490 U.S. 360 (1989) .......................................................................................................3 Muckleshoot Indian Tribe v. United States Forest Serv.,

177 F.3d 800 (9th Cir. 1999) .........................................................................................1

Native Ecosystems Council v. United States Forest Serv., 418 F.3d 953 (9th Cir. 2005) .........................................................................................3

Norton v. Southern Utah Wilderness Alliance,

542 U.S. 55 (2004) .........................................................................................................3

ONRC Action v. BLM, 150 F.3d 1132 (9th Cir. 1998) .......................................................................................4



Page


Forest Service’s Motion for Summary Judgment iii

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

Occidental Engineering Co. v. INS,

753 F.2d 766 (9th Cir. 1985) .........................................................................................3

Okanogan Highlands Alliance v. Williams, 236 F.3d 468 (9th Cir. 2000) .........................................................................................2

Public Citizen Health Research Group v. Commissioner, Food and Drug Admin.,

740 F.2d 21 (D.C. Cir. 1984) .........................................................................................4

Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) .......................................................................................................2

Sierra Club v. Babbitt,

65 F.3d 1502 (9th Cir. 1995) .........................................................................................3

Te-Moak Tribe of Western Shoshone of Nevada v. United States Dep’t of Interior, 608 F.3d 592 (9th Cir. 2010) .........................................................................................1

Tur v. YouTube, Inc.,

562 F.3d 1212 (9th Cir. 2009) .................................................................................4, 10

Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, 435 U.S. 519 (1978) .......................................................................................................2

Winnemem Wintu Tribe v. United States Department of Interior,

725 F. Supp. 2d 1119 (E.D. Cal. 2010)................................................................ passim

FEDERAL STATUTES

5 U.S.C. §§ 701-706 ............................................................................................................3

5 U.S.C. § 702 ...............................................................................................................4, 12

5 U.S.C. § 706 .....................................................................................................................3

5 U.S.C. § 706(1) .................................................................................................................3

5 U.S.C. § 706(2) .................................................................................................................3

16 U.S.C. § 470(b)(4) ..........................................................................................................1

16 U.S.C. § 470a(d)(6)(A)-(B) ........................................................................................1, 6

16 U.S.C. § 470h-2(a)(2) ...................................................................................................11

16 U.S.C. § 470w(4) ............................................................................................................2

28 U.S.C. § 2401 ..................................................................................................................5

28 U.S.C. § 2401(a) .............................................................................................................8

42 U.S.C. § 4321 ..................................................................................................................2

42 U.S.C. § 4331 ..................................................................................................................2



Page


Forest Service’s Motion for Summary Judgment iv

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

FEDERAL REGULATIONS

36 C.F.R. § 60.4 ...................................................................................................................6

36 C.F.R. § 800.2(c).............................................................................................................8

36 C.F.R. § 800.2(c)(2) ..............................................................................................1, 6, 11

36 C.F.R. § 800.2(c)(2)(ii)(C) ..............................................................................................2

36 C.F.R. § 800.2(d) ....................................................................................................2, 7, 8

36 C.F.R. § 800.4(b) ............................................................................................................6

36 C.F.R. § 800.16(m) .........................................................................................................2

40 C.F.R. § 1501.1 ...............................................................................................................2

43 C.F.R. § 7.3(f)(1) ............................................................................................................2

43 C.F.R. § 7.7(a)(1) ................................................................................................2, 13, 14

43 C.F.R. § 7.7(a)(2) ......................................................................................................2, 13

FEDERAL REGISTER

79 Fed. Reg. 4748-02 (Jan. 29, 2014) ..................................................................................2



Forest Service’s Motion for Summary Judgment 1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

I.

INTRODUCTION

After five long years of litigation on the United States Forest Service’s motions to dismiss

plaintiffs’ multiple complaints, and on the adequacy of the Forest Service’s administrative record, this

case finally is ready for the Court’s determination on the merits of plaintiffs’ claims in their fourth

amended complaint (“FAC”). For the reasons argued herein, and as demonstrated by the administrative

record, the Forest Service is entitled to summary judgment.

All of plaintiffs’ claims fail because they are time-barred or moot, they do not involve final

agency actions or any injury-in-fact to plaintiffs (thus depriving plaintiffs of standing and the Court of

subject matter jurisdiction), and/or because the Forest Service complied with all of the federal statutory

requirements that plaintiffs claim the Forest Service violated. Accordingly, the Court should end this

litigation once and for all by granting summary judgment in favor of the Forest Service.

II.

APPLICABLE STATUTORY FRAMEWORK

A. National Historic Preservation Act (“NHPA”)

“[T]he fundamental purpose of the NHPA is to ensure the preservation of historical resources.”

Te-Moak Tribe of Western Shoshone of Nevada v. United States Dep’t of Interior, 608 F.3d 592, 609

(9th Cir. 2010). “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 before expending federal

funds or approving any licenses in connection with the undertaking.” Winnemem Wintu Tribe v. United

States Dep’t of Interior, 725 F. Supp. 2d 1119, 1138 (E.D. Cal. 2010) (citing 16 U.S.C. §§ 470(b)(4)

and 470f). The NHPA is a procedural statute. Franco v. United States Dep’t of Interior, 2012 WL

3070269, *13 (E.D. Cal. July 27, 2012) (citing Te-Moak Tribe, 608 F.3d at 610). “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. United States Forest Serv., 177 F.3d 800, 805 (9th Cir. 1999).

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 16 U.S.C. § 470a(d)(6)(A)-(B); 36 C.F.R. § 800.2(c)(2). The obligation to consult with




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

Indian tribes only extends to federally recognized Indian tribes. See id.; 16 U.S.C. § 470w(4) (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 are

entitled only to notice and information as interested members of the public. 36 C.F.R. § 800.2(d).

B. National Environmental Policy Act (“NEPA”)

The NEPA is a procedural statute enacted to ensure that 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. National Resources Defense 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).

C. Archaeological Resources Protection Act (“ARPA”)

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). 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); see 79 Fed. Reg. 4748-02

(Jan. 29, 2014) (listing all federally recognized Indian tribes). Other, non-federally recognized Native

American groups “may” be provided notice of an ARPA permit. 43 C.F.R. § 7.7(a)(2).




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

III.

APPLICABLE STANDARDS FOR REVIEW OF CLAIMS

A. Review Under The Administrative Procedure Act (“APA”)

The Court’s review of agency actions is governed by the judicial review provisions of the APA,

5 U.S.C. §§ 701-06. Native Ecosystems Council v. United States Forest Serv., 418 F.3d 953, 960 (9th

Cir. 2005). Under the APA, the Court’s review is limited to the administrative record. 5 U.S.C. § 706.

The Court reviews actions under the APA through the summary judgment procedure of Rule 56 of the

Federal Rules of Civil Procedure, but the focus of the review is to determine whether the agency’s

decision was “arbitrary or capricious” or otherwise “not in accordance with law,” based upon whether

the record as whole supports the decision – not whether “disputed issues of fact” require a trial de novo.

5 U.S.C. § 706(2); City & County of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir. 1997);

Sierra Club v. Babbitt, 65 F.3d 1502, 1507 (9th Cir. 1995); Occidental Eng’g Co. v. INS, 753 F.2d 766,

769 (9th Cir. 1985). The burden of proof remains 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, 1398 (9th Cir. 1994).

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) (citing Earth Island Inst. v. United States 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.’” League of Wilderness Defenders v. United

States Forest Serv., 549 F.3d 1211, 1215 (9th Cir. 2008) (citing Lands Council v. McNair, 537 F.3d

981, 987 (9th Cir. 2008) (quoting Earth Island Inst. v. United States Forest Serv., 442 F.3d 1147, 1156

(9th Cir. 2006)). To overturn any decision by the Forest Service, 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 may also be brought under 5 U.S.C. § 706(1) based upon an agency’s failure to act when

the agency fails to take a discrete action required by law. 5 U.S.C. § 706(1); Norton v. Southern Utah




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

Wilderness Alliance, 542 U.S. 55, 64 (2004) (a failure to act claim “can proceed only where a plaintiff

asserts that an agency failed to take a discrete agency action that it is required to take”) (emphasis in

original). A required act is one “in the face of clear statutory duty or is of such a magnitude that it

amounts to an abdication of statutory responsibility.” Franco, 2012 WL 3070269 at *12 (citing ONRC

Action v. BLM, 150 F.3d 1132, 1137 (9th Cir. 1998) (quoting Pub. Citizen Health Research Group v.

Comm'r, Food and Drug Admin., 740 F.2d 21, 32 (D.C. Cir. 1984)).

B. Standing

“To bring a suit under the APA, plaintiffs must meet statutory requirements for prudential

standing.” Winnemem, 725 F. Supp. 2d at 1135 (citing Churchill County v. Babbitt, 150 F.3d 1072,

1078 (9th Cir. 1998)). “Specifically, plaintiffs must show that (1) there has been final agency action

which adversely affected them, and (2) that as a result, their injury falls within the ‘zone of interests’ of

the statutes they claim were violated.” Id. (citing 5 U.S.C. § 702; Churchill County, 150 F.3d at 1078)).

“[T]wo conditions must be satisfied for agency action to be final: First, the action must mark the

consummation of the agency’s decision-making process- it must not be of a merely tentative or

interlocutory nature. And second, the action must be one by which rights or obligations have been

determined, or from which legal consequences will flow.” Id. (quoting Fairbanks North Star Borough

v. United States Army Corps of Eng’rs, 543 F.3d 586, 591 (9th Cir. 2008)).

C. Mootness

Under Article III of the United States Constitution, a “live controversy” must “persist throughout

all stages of the litigation.” Gator.com Corp. v. L.L. Bean, 398 F.3d 1125, 1128-29 (9th Cir. 2005) (en

banc). If “this condition is not met, the case has become moot, and its resolution is no longer within our

constitutional purview.” Id. “Mootness can be characterized as the doctrine of standing set in a time

frame: The requisite personal interest that must exist at the commencement of the litigation (standing)

must continue throughout its existence (mootness).” Cook Inlet Treaty Tribes v. Shalala, 166 F.3d 986,

989 (9th Cir. 1999) (internal quotation omitted). “The basic question in determining mootness is

whether there is a present controversy as to which effective relief can be granted.” Tur v. YouTube, Inc.,

562 F.3d 1212, 1213 (9th Cir. 2009) (internal quotation omitted).

///


https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1998159297&pubNum=506&fi=co_pp_sp_506_1137&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_506_1137






1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

IV.

ARGUMENT

A. The Nosoni Creek Claims Are Time-Barred And Fail On Their Merits

1. Claims About The Nosoni Creek Bridge Are Time-Barred And Meritless

On May 15, 2000, the Forest Service signed a Decision Memo approving the Nosoni Creek

Bridge Replacement Project. AR 806.1 Plaintiffs allege that the Forest Service violated the NHPA by

not designating the Nosoni Bridge as a historic site; not undertaking a NHPA Section 106 evaluation for

the project; and approving the project without consulting with them. FAC, ¶ 52. All of these claims are

time-barred.2 They fail on their merits as well, so the Forest Service is entitled to summary judgment.

a) The Nosoni Bridge Claims Are Time-Barred.

Plaintiffs were required to file any APA claims related to the Nosoni Bridge project within six

years from the date of the Forest Service’s decision. 28 U.S.C. § 2401; Gros Ventre Tribe v. United

States, 469 F.3d 801, 814 n.12 (9th Cir. 2006). Since the Decision Memo issued in May 2000, the

statute of limitations for plaintiff’s APA claims ran in May 2006 – three years before plaintiffs filed

their first complaint. The claims are therefore barred by the statute of limitations. 28 U.S.C. § 2401.

b) Nosoni Bridge Is Not Eligible To Be Designated As A Historic Site.

Prior to issuing its Decision Memo, the Forest Service evaluated whether the bridge is a historic

site eligible to be listed on the National Register of Historic Places (“National Register”). See AR 801-

04.3 Based on its analysis of the bridge’s characteristics, condition, integrity, and other criteria, it

determined that the bridge is not eligible for the National Register. See id. Before implementing the

project, the Forest Service requested that California State Historic Preservation Office (“SHPO”) review

its determination. See AR 805, 809. SHPO concurred. AR 23.

1 “AR” refers, collectively, to the amended and supplemental administrative record prepared and

produced by the Forest Service.

2 See Winnemem, 725 F. Supp. 2d at 1137 (holding that ARPA claim based on allegations that

the Forest Service destroyed grapevines in 2001 were time-barred).

3 See also Dkt. No. 33-4, Ex. H (Cottini Decl.), ¶ 4 (stating that no historic properties or

archaeological sites were found in the Nosoni bridge project area). The Court must take judicial notice of the Cottini and Henn declarations cited in this brief, which are attached as exhibits A, B, C, and E to the Schmidt declaration filed herewith. Fed. R. Evid. 201(c)(2).




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

The Forest Service met its obligations under NHPA to make a reasonable and good faith effort

to identify historic properties (See 36 C.F.R. § 800.4(b)), and to determine if Nosoni Bridge is eligible

for listing on the National Register (See 36 C.F.R. § 60.4). Plaintiffs cannot prove that the Forest

Service’s determination was arbitrary and capricious in violation of the APA, or that it did not perform a

discrete act that it was statutorily required to perform. The Court should grant summary judgment in

favor of the Forest Service.

c) The Forest Service Performed A Section 106 Evaluation For The Project.

This Court previously found that the Forest Service had “introduced evidence to show

compliance with NHPA’s requirements” for the bridge project in 2000. Winnemem, 725 F. Supp. 2d at

1138 (citing Dkt. No. 33-4, Ex. H (Cottini Decl.), ¶ 4 (stating that the only project undertaken by the

Forest Service was the bridge replacement project and that a NEPA analysis and Section 106 evaluation

were conducted for the project in 2000)). Plaintiffs have not identified any deficiency in the Section 106

evaluation for the bridge project; they only allege that the Forest Service did not perform one. FAC,

¶ 52. Plaintiffs are incorrect, as the Court previously found, and as confirmed by the administrative

record. See AR 16-20 (Archaeological Reconnaissance Report #05-14-1003 for the Nosoni Bridge

Replacement Project); AR 793-800 (Primary Site Record for Nosoni Creek Bridge); AR 801-04

(Determination of Eligibility for National Register); AR 23 (SHPO concurrence letter); AR 805

(approval of NHPA Section 106 process for bridge project); AR 806-08 (Decision Memo); see also

Dkt. No. 33-4, Ex. H (Cottini Decl.), ¶ 4; Dkt. No. 56-1, Ex. B (Henn Decl.),2 ¶ 4. Since the Forest

Service conducted a Section 106 analysis for the Nosoni Bridge project, and they cannot show that the

Forest Service’s actions were arbitrary and capricious, this claim fails on the merits.

d) The NHPA Did Not Require Consultation With Plaintiffs About The Project.

The Forest Service had no duty to consult with plaintiffs about the Nosoni bridge project since it

determined that the Nosoni Bridge is not eligible to be listed on the National Register (See AR 801-04),

and since plaintiffs are not a federally recognized tribe. See 16 U.S.C. § 470a(d)(6)(A)-(B); 36 C.F.R.

§ 800.2(c)(2). The Forest Service’s only obligation to plaintiffs, in their capacity as interested members

of the public, was to provide notice and information about the project to the public and to seek public

comment and input. 36 C.F.R. § 800.2(d). The Forest Service met these requirements.




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

On July 26, 1999, the Forest Service sent a direct mailing regarding the Nosoni Bridge project,

and other proposed projects, to interested people and organizations, including Florence Jones, the then-

leader of the Winnemem. AR 792; AR 13-14. On behalf of Ms. Jones, on August 3, 1999, Mark Franco

(previously a plaintiff in this litigation (See Dkt. Nos. 1, 30, 54)) wrote that “Florence Jones indicates

she has no problem with these repairs. However, she indicates that work must halt should human

remains be found.” AR 792. In addition to this direct communication with the Winnemem about the

project, the Forest Service also published a notice and invited public comment in the Intermountain

Times, among other newspapers, on July 28, 1999. AR 15. And, though the Forest Service had no duty

to consult with plaintiffs, the record shows that it had multiple meetings and communications with them

about the Nosoni Bridge project in 2000 and 2001. See AR 811-13. The Nosoni Bridge project was

completed in 2001. Dkt. No. 33-4, Ex. H (Cottini Decl.), ¶ 4.

Therefore, plaintiffs’ claim that the Forest Service violated the NHPA because it did not consult

with them about the project fails, and the Court should grant summary judgment for the Forest Service.

2. There Is No Nosoni Bridge Truck Ramp Project.

Plaintiffs allege that, in 2001 or 2002, the Forest Service authorized a project to construct a truck

ramp leading to Nosoni Creek. FAC, ¶ 28. They claim that the Forest Service violated the NHPA

because it did not consult with them about the truck ramp project. Id., ¶ 52. Plaintiffs also allege that

the Forest Service violated the NEPA by not preparing an environmental impact statement or an

environmental assessment for the alleged truck ramp. Id., ¶ 53.

The fatal flaw in this claim is that the Forest Service did not authorize any project to construct a

truck ramp at Nosoni Creek in 2001 or 2002, and the only project authorized was the 2000 bridge

replacement project. AR 806 (Decision Memo); see Winnemem, 725 F. Supp. 2d at 1138 (stating that

the only project undertaken at Nosoni Creek was the bridge replacement project) (citing Dkt. No. 33-4

(Kristy Cottini Decl.), ¶ 4). Nor has the Forest Service authorized any truck ramp project at any time

since then. Dkt. No. 56-1, Ex. A (Third Cottini Decl.), ¶ 4; Schmidt Decl., ¶¶ 9-10.

Because no Nosoni truck ramp project has ever existed, the Forest Service had no NHPA

obligation to provide notice of the project to plaintiffs, as members of the public.

///




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

Additionally, since no such project has ever existed, plaintiffs have not alleged any final agency

action that adversely affected them and they cannot prove injury-in-fact. Plaintiffs lack prudential

standing under the APA, and the Court lacks subject matter jurisdiction over their truck ramp claims.

Finally, even if a truck ramp project had been undertaken in 2001 or 2002 as plaintiffs allege,

their claims would be time-barred because any such claims had to be brought by 2007 or 2008 – within

six years of the decision. 28 U.S.C. § 2401(a). Because plaintiffs filed this lawsuit in 2009 (Dkt. No. 1),

all claims related to this issue are untimely.

Accordingly, the Court should grant summary judgment for the Forest Service.

B. Plaintiffs’ Claims On The 2003 Gilman Road Shaded Fuelbreak Project Are

Time-Barred And They Also Fail On The Merits.

In June 2003, the Forest Service signed a Decision Notice and Finding of No Significant Impact

for the Gilman Road Shaded Fuelbreak project in the area that plaintiffs refer to as the “Dekkas site.”4

Plaintiffs’ claim that the Forest Service violated the NHPA by not consulting with them about the

project, which was first raised in their second amended complaint filed in 2010 (Dkt. No. 54), is barred

by the six-year statute of limitations. 28 U.S.C. § 2401(a).

Additionally, on the merits, the Court already has found that defendants complied with NHPA

and NEPA by completing a Section 106 evaluation and an environmental assessment for the Gilman

Road Shaded Fuelbreak Project, and that plaintiffs (the Francos) participated in the process, which was

completed in 2003. See Winnemem, 725 F. Supp. 2d at 1142 (citing Dkt. No. 33-4 (Cottini Decl.), ¶ 5).

This finding is supported by the administrative record. See AR 122 (2003 Environmental Assessment);

AR 112, 120 (2002 Archaeological Reconnaissance Report); AR 106-10 (2002 communications and

field visits with plaintiffs).

Since plaintiffs are not a federally recognized tribe, they are not entitled to consultation under

the NHPA; only to notice and information as members of the public. 36 C.F.R. § 800.2(c), (d). Given

plaintiffs’ actual notice of and participation in the NEPA/NHPA process for the project, their claim fails

and the Forest Service is entitled to summary judgment.

4 See Dkt. No. 56-1, Ex. B (Henn Decl.), ¶ 5 (explaining that the area that plaintiffs refer to as the

“Dekkas site” does not contain any archaeological sites or archaeological resources).




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

Plaintiffs also allege that the Forest Service violated NHPA by (1) cutting and destroying cultural

resources at the Dekkas site; (2) failing to include an accurate report on the destruction of the Manzanita

in annual reports; (3) failing to monitor project activities at the site; (4) failing to make annual reports

available to the public; and (5) failing to comply with public participation requirements. FAC, ¶ 58.

The Court already has found, and the administrative record confirms, that plaintiffs had actual

notice of, and participated in, the NHPA and NEPA process, so that claim fails. See Winnemem, 725 F.

Supp. 2d at 1142; AR 106-10, 112, 120, 122.

Plaintiffs cannot prove their other alleged violations of the NHPA since none of them relate to

any final agency action that would trigger NHPA obligations. Nor do they allege any specific injury that

would give them standing. The allegations are too vague for the Forest Service to be put on fair notice

of the claims to be able to respond to them in this motion, and the record does not support such claims.

For example, plaintiffs do not allege specifically which “cultural resources” were destroyed,

how they were destroyed, when they were destroyed, or whether the alleged “cultural resources” were

historical property subject to the NHPA.5 They do not identify which annual reports omit an “accurate

report” on destruction of Manzanita, which annual reports include inaccurate reports and how they are

inaccurate, or which annual reports were not made available to the public. They do not specify which

project activities were not monitored, when they were not monitored, or the source of the Forest

Service’s alleged obligation to monitor the unspecified project activities. Since plaintiffs have not

identified final agency actions, or that the Forest Service did not take any discrete action that it was

required to take, or any alleged injury-in-fact, they lack prudential standing, the Court lacks jurisdiction,

and the Forest Service is entitled to summary judgment.

C. The Coonrod Flat Claim Is Moot.

Plaintiffs allege that, in 2005, the Forest Service violated the NHPA by granting a permit to

graze cattle on 5,000 acres of land at Coonrod Flat without conducting a Section 106 analysis. FAC,

¶ 63. However, the Forest Service did not issue a new permit in 2005; it issued a new permit in 2003

5 See Dkt. No. 56-1, Ex. B (Henn Decl.), ¶ 5 (explaining that no archaeological resources have

been found at Dekkas and that “[t]here are no historic or ethnographic records supporting the various claims that the plaintiffs are making regarding the alleged historical uses of Dekkas”).




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

that was modified in 2005. See AR 908 (Bartle Term Grazing Permit 00614 issued April 2003);

AR 201-04 (Bartle Term Grazing Permit modified August 2005). The 2005 modified permit on which

plaintiffs’ claim is based relates no longer exists. It was replaced and superseded by a new permit that

the Forest Service issued in 2010. AR 962-75 (Bartle Term Grazing Permit issued April 2010); see AR

962 (“This permit supersedes permit no 00614, issued on 04/11/2003”). Therefore, there is no present

controversy as to which the Court can grant effective relief as to the 2003 permit/2005 modification,

and plaintiffs’ claim is moot. Tur, 562 F.3d at 1213.

Additionally, plaintiffs’ claim that the Forest Service did not conduct a NHPA Section 106

analysis for Coonrod Flat is moot because the Forest Service performed a Section 106 analysis in 2007.

See AR 955-60 (Archaeological Reconnaissance Report for Bartle and Toad Allotments); AR 961

(approval of Section 106 process for Bartle and Toad Range grazing permits). Accordingly, the Court

cannot grant effective relief, the claim is moot, and the Forest Service is entitled to summary judgment.

D. The Forest Service Satisfied NHPA/NEPA For The Clikapudi Trail Loop At Buck Saddle.

In October 2006, the Forest Service signed a Decision Memo to add an approximately one-mile

trail to the existing Clikapudi Trail Loop at the Buck Saddle site. AR 328-338. Plaintiffs claim that the

Forest Service violated the NHPA and the NEPA by placing the trail in an area that contains a sacred

prayer rock. FAC, ¶ 68.

However, the Forest Service determined that the “sacred prayer rock,” is not an archaeological

feature. AR 339-42. Due to the lack of any archival data, the Forest Service found it difficult to

determine whether the sacred prayer rock is a traditional cultural property and it did not make that

determination. See id. Therefore, even if the new bike trail was located at the site of the alleged sacred

prayer rock, which it was not,6 that rock cannot form the basis of any injury-in-fact to plaintiffs under

the NHPA, so they lack standing.

In any event, the Forest Service complied with the NHPA and the NEPA for the bike trail

project. The administrative record establishes that the Forest Service conducted a Section 106/NEPA

categorical exclusion analysis for the project. See AR 316 (Site Record for Buck Saddle); AR 327

6 See AR 327 (the bike trail “will not impact the Jones Valley/Bucks Saddle Site,” “has been

designed to avoid the site,” and “will contour below the saddle, avoiding the site”).




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

(Section 106 compliance); AR 328 (Decision Memo/Categorical Exclusion); AR 333-36 (discussing

bases for categorical exclusion); see also Dkt. No. 56-1, Ex. A (Third Cottini Decl.), ¶ 6. Therefore, the

allegation that the Forest Service did not perform any environmental analysis of the project is meritless.

This project fell within the Regional Programmatic Agreement for coverage under Section 106

of the NHPA. See AR 67; see also Dkt. No. 56-1, Ex. A (Third Cottini Decl.), ¶ 6. That agreement

provides for the use of NEPA public notification processes and states that the NEPA scoping process

shall be used to meet Section 106 responsibilities involving Native Americans and others. AR 82-83;

see Dkt. No. 56-1, Ex. A, ¶ 6; see also AR 305 (project listed in Schedule of Proposed Actions); AR

281-95 (mailing lists for public notice); Dkt No. 56-1, Ex. A, ¶ 6 (project was listed on Forest Service’s

website); AR 280 (project was mentioned in newspapers, including in the Redding Record Searchlight).

The Section 106 process was conducted in July 2006. See Dkt. No. 56-1, Ex. A, ¶ 6; AR 327.

As for plaintiffs’ claim that the Forest Service did not consult with them, there was no duty to

consult under the NHPA because plaintiffs are not a federally recognized tribe. 36 C.F.R. § 800.2(c),

(d). They were only entitled to the same notice given to the public, and the Forest Service gave the

required public notice. The Forest Service did not receive any comments in response to the Schedule of

Proposed Actions. See AR 333.

Plaintiffs claim that the Forest Service violated the Section 110 of the NHPA by not developing a

protection plan before allowing the bike path to be created. FAC, ¶ 69. Section 110 requires federal

agencies to establish “a preservation program for the identification, evaluation, and nomination to the

[National Register], and protection of historic properties.” 16 U.S.C. § 470h-2(a)(2) However, “[c]ourts

that have addressed Section 110 have held that it does not create substantive obligations, apart from the

procedural obligations already present in the Section 106 process.” Franco, 2012 WL 3070269 at *13

(citations omitted). Plaintiffs’ claim fails because Section 110 does not require protection plans for

historic properties on a site-by-site basis. See 16 U.S.C. § 470h-2(a)(2); see also Dkt. No. 56-1, Ex. B

(Henn Decl.), ¶ 7. The Shasta-Trinity Forest Plan contains standards and guidelines regarding

preservation of important historic properties consistent with Section 110 requirements. See Dkt. No.

56-1, Ex. B (Henn Decl.), ¶ 7; Schmidt Decl., ¶ 13 and Ex. D; see also AR 67 (regional programmatic

agreement for Section 106).




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

E. There Is No Rocky Ridge Parking Lot Or Overflow Parking Project.

The Rocky Ridge campground is a historic site eligible for listing on the National Register. See

AR 369-71. Plaintiffs allege that Jones Valley Resort has a permit to operate a parking lot at Rocky

Ridge, that the Forest Service has given Jones Valley Resort “tacit approval” for an overflow parking lot

at the site, has allowed Jones Valley Resort to install a lock on the gate preventing access to the site, and

has not completed an NHPA Section 106 analysis for the overflow parking lot. FAC, ¶¶ 41, 74. None

of these claims are true.

The Forest Service has not given Jones Valley Resort a permit for a parking lot at Rocky Ridge.

Dkt. No. 33-4, Ex. H (Cottini Decl.), ¶ 7; Schmidt Decl., ¶¶ 9-12; see AR 374. The only lock on the

Rocky Ridge campground gate is a Forest Service lock. AR 373; Dkt. No. 56-1, Ex. A (Third Cottini

Decl.), ¶ 10; Schmidt Decl., ¶¶ 9-12. And the Forest Service has not approved any project to construct

a parking lot, or an overflow parking area at Rocky Ridge, tacitly or otherwise. Dkt. No. 56-1, Ex. A

(Third Cottini Decl.), ¶ 10; Schmidt Decl., ¶¶ 9-12; see AR 374. Since no project exists, no NHPA

analysis is required.

Tacit approval would not rise to the level of a final agency action in any event. 5 U.S.C. § 702;

Fairbanks, 543 F.3d at 591 (to be final, an 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”). Since there is no final agency action and no injury-in-fact, plaintiffs lack standing to pursue

this claim, and the Court lacks subject matter jurisdiction. Therefore, the Court should grant summary

judgment for the Forest Service.

F. The Forest Service Was Not Required To Consult With Plaintiffs On The Antler’s Bridge ARPA Permit, But Gave Plaintiffs The Required Notice And More.

The Antler’s Bridge Replacement Project is a joint project of the California Department of

Transportation (“CalTrans”) and the Federal Highway Administration (“FHWA”); it is not a Forest

Service project. See, e.g., AR 1047 (Historic Property Survey Report stating Antler’s Bridge is a

CalTrans/FHWA project). In October 2010, the Forest Service issued an ARPA permit that authorizes

CalTrans to process and screen soils removed from the Antler’s Bridge project in January 2010, and




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

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; 689.

Plaintiffs allege that the Forest Service violated the ARPA by excluding them from the consultation

process for the CalTrans ARPA permit, and by not consulting with them regarding planned excavation

of the site pursuant to the ARPA permit. Both of these claims are meritless.

The Forest Service was not required to consult with or give notice to plaintiffs about the

CalTrans ARPA permit because they are not a federally recognized Indian tribe. 43 C.F.R. §§ 7.7(a)(1);

7.3(f)(1); 7.7(a)(2). Since notice to plaintiffs was optional, they lack standing to sue the Forest Service

under the ARPA for allegedly not consulting with them about the CalTrans permit. Nevertheless,

evidence in the record proves that plaintiffs received actual notice about the ARPA permit, so this claim

fails on the merits as well. Indeed, not only did plaintiffs receive actual notice, they participated in

meetings about the permit and future excavations pursuant to the permit, and were given an opportunity

to review key agreements and documents and to be a concurring party in the agreements.

In February 2010 – following the January 2010 discovery of archeological deposits at Antler’s

Bridge – Mark Franco represented the Winnemem at a joint meeting among CalTrans, SHPO, the Forest

Service, the Redding Rancheria (which is a federally recognized Indian tribe), and the Wintu Tribe of

Northern California (which is not). See AR 380-402 (meeting agenda and minutes).7 Franco was a very

active participant in that meeting and, among other things, expressed plaintiffs’ views and asked

questions about a number of issues related to the processing of the soils where deposits were discovered,

mitigation of adverse effects, and the ARPA permit that would be needed to process the soils. See, e.g.,

AR 380, 384-402.

The need for an ARPA permit to be issued before any screening of the soil occurred was

specifically discussed at this meeting. See AR 386, 388, 398. A proposed mitigation plan had been

circulated prior to the meeting, but Franco stated he had not had time to review it. AR 385. Franco

communicated the Winnemem’s position on issues such as: educating the public about not vandalizing

7 Plaintiff Caleen Sisk and Aaron Sisk were present at the site when the archaeological materials

were discovered. See AR 382, 384. The minutes reflect comments by CalTrans and Forest Service representatives that they consulted with plaintiffs after the archaeological discovery. See AR 384-87.




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

or looting sites (AR 389-90); what to do with the soil and discovered materials, for example, whether to

re-inter it, sample it, etc. (AR 392-93, 401); plaintiffs’ desire to have monitors present during the

excavation process (AR 395); whether auguring was necessary to gather additional data (AR 396);

confirming that there is no potential harm to cultural material at the bedrock level (AR 397); and

concerns about the involvement of outside cultural consultants and other tribes (AR 389, 399-401).

Franco stated that he would communicate with Caleen Sisk about her feelings about leaving the

soil in place or moving it to another safer location for processing, and the screening methods being

proposed (1/8” wet and 1/4” dry). AR 398-99. And the topic of hiring Franco to provide inspection

services during the process (in addition to separate monitoring by Winnemem) was also discussed at the

February 2010 meeting. AR 401-02. The ARPA permit was signed in October 2010. See AR 676-775.

Accordingly, the record establishes that the Forest Service gave plaintiffs actual notice about the

CalTrans ARPA permit prior to its issuance. Indeed, the Forest Service went beyond just giving

plaintiffs notice, and it met and consulted with plaintiffs even though that was not required by the

ARPA. Accordingly, this claim against the Forest Service fails on the merits.

Plaintiffs’ contention that the Forest Service violated the ARPA by not consulting with them

about planned excavations fails because CalTrans, not the Forest Service, is responsible for excavations

at Antler’s Bridge, including pursuant to the CalTrans ARPA permit. Any such claim must therefore lie

against CalTrans, which is not a party to this lawsuit.

Even if CalTrans was a party, however, the claim fails on its merits. The record shows that

CalTrans directly communicated and consulted with plaintiffs about its plans to resolve and mitigate

adverse effects on archaeological deposits from excavations at Antler’s Bridge. In July 2010, CalTrans

wrote to plaintiffs and sent them drafts of: (1) the Memorandum of Agreement for the Antler’s Bridge

project; (2) the Data Recovery Plan for Possible Buried Archaeological Deposits; and (3) the Discovery

Plan for Possible Buried Archaeological Deposits. See AR 412-13; AR 673-74 (signed return receipt for

Caleen Sisk-Franco). CalTrans invited the Winnemem to participate as a concurring party, asked to

receive plaintiffs’ comments on the draft documents by August 1, 2010, and asked plaintiffs to notify

CalTrans if the Winnemem wanted to be a concurring party or needed more information. AR 412-13.

///




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

In October 2010, CalTrans wrote to plaintiffs to follow up on the status of their review and

comment on the draft documents and to let them know, among other things, that CalTrans intended to

hire Native American monitors for ground disturbing work in the relevant location at Antler’s Bridge.

AR 675. CalTrans informed plaintiffs that it intended to comply with ARPA and the Native American

Graves Protection and Repatriation Act guidelines for treatment of cultural materials and human

remains. Id. CalTrans again invited the Winnemem to be a party to the Memorandum of Agreement.

Id. Apparently, plaintiffs declined to sign the Memorandum of Agreement. See AR 545, 561.

Therefore, plaintiffs’ claim against the Forest Service regarding consultation about excavation

pursuant to the CalTrans ARPA permit fails not only because plaintiff has sued the wrong entity on

that claim, but also because the evidence in the record confirms that CalTrans consulted with plaintiffs.

Accordingly, the Forest Service is entitled to summary judgment on this claim.

V.

CONCLUSION

For all of the foregoing reasons, the Court should grant summary judgment in favor of the United

States Forest Service on all of plaintiffs’ claims in the fourth amended complaint.

DATED: December 18, 2014 BENJAMIN B. WAGNER

United States Attorney

By: /s/ Lynn Trinka Ernce LYNN TRINKA ERNCE Assistant United States Attorney


benjamin b. wagner united states attorney lynn trinka … · case no. 2:09 -cv 01072 kjm kjn andum...

Documents