The SHPO responded by asserting that the Forest Service's determination did not meet SHPO standards because the Forest Service failed to consider or survey project areas related to road access. In response, the Forest Service maintained that it had made a reasonable and good faith effort to identify properties in the area of potential effects. Plaintiffs were not satisfied with the Forest Service's actions, contending that the permit was issued without providing the SHPO and the Advisory Council on Historic Preservation an opportunity to comment and without considering and documenting the effect on Enola Hill.
The district court disagreed with plaintiffs, finding that the Forest Service had considered appropriate information regarding Enola Hill and issued the permit in compliance with the requirements of Section 106. This was in spite of the fact that the Council had advised the Forest Service that it should submit the Enola Hill site to the Keeper of the National Register of Historic Places for a determination of eligibility as a traditional cultural property. [Ed. note: The Council ultimately sent information on the question of eligibility to the Keeper.] In finding that the Forest Service decision was not arbitrary and capricious and accorded with procedures required by law, the district court observed that the Forest Service searched diligently for historic properties in the Enola Hill area by having specialists and cultural resource technicians conduct several field inventories.
The court noted that significant inventories conducted in past years showed no physical evidence of traditional cultural sites and, further, that the Forest Service had also reviewed existing historical data and sought comments from interested citizens. 832 F. Supp. at 300.
Finally, the court was apparently impressed by the fact that the Forest Service had assembled a committee comprised of archeologists, an American Indian, a cultural resource technician, and attorneys who found that no traditional cultural properties existed in the area. Id.
In finding that the Forest Service had complied with Section 106, the district court noted that the Forest Service had numerous communications with the SHPO. A 1989 Memorandum of Agreement (MOA) with the SHPO, in fact, only required the Forest Service to provide data to the SHPO annually on areas surveyed if no cultural resources were found. The district court thus determined that the Forest Service had fulfilled the consultation requirement of 36 C.F.R. § 800.4(b).
Plaintiffs appealed the district court decision, but the Ninth Circuit held that the action was moot.
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