The district court had ruled in favor of the Forest Service, finding that the agency had met the "substantive requirements" of NHPA, even though the agency did "not appear to have taken the requirements of [NHPA] very seriously . . . ." 50 F.3d at 858. The district court was persuaded by the fact that the New Mexico State Historic Preservation Officer (SHPO) had concurred in the Forest Service finding that the canyon sites were not eligible. Id.
The court of appeals reversed the district court decision, holding that the Forest Service did not make a reasonable and good faith effort to identify historic properties and, therefore, could not make a proper determination as to whether the area contained traditional cultural properties. In evaluating the Forest Service identification effort, the court noted that officials had mailed form letters to local Indian tribes, including the Sandia Pueblo, and to individual tribal members, requesting maps and detailed information on the location of potential sites, the type and frequency of activities on them, and their historic nature.
The Forest Service also requested this information at meetings with the tribes in which it informed them that properties of traditional cultural or religious significance are eligible for the National Register. The tribes did not provide the Forest Service with the requested information; however, during the environmental impact statement process, they did inform officials that the selected alternative would adversely affect traditional cultural properties and practices in the canyon as a result of increased traffic and visitation.
Moreover, the Governor of the Sandia Pueblo had informed the Forest Service that the canyon was of great religious and cultural significance. The affidavit of a tribal elder and religious leader taken by the regional forester, which listed several religious practices, also alluded to sacred sites.
The court noted that the Forest Service had additional evidence that the canyon contained traditional cultural properties. Minutes of a working group meeting showed that the canyon was used by the Pueblo for ceremonial, religious, and medicinal purposes. Additionally, an anthropologist informed the Forest Service of the tribe's religious and cultural affiliation with the canyon, noting ceremonial paths, sites, and herbs used by the Pueblo.
The court also was persuaded by the fact that the Forest Service should have known that tribes are reluctant to divulge specific information about religious and cultural sites. National Register Bulletin 38 warns that tribes may not divulge such information. Indeed, the court pointed out that the anthropologist and the tribal members noted the importance of secrecy to the tribes. Id. at 860-61.
In assessing what constitutes a reasonable effort to identify traditional cultural properties, the court observed that Bulletin 38 states that the level of effort depends on the likelihood that properties may exist. The court found that the information before the Forest Service, when considered with the secrecy concerns of the tribes, was enough to constitute a likelihood that traditional cultural properties existed and thus warranted further investigation. Id. at 861.
As a final matter the court addressed plaintiffs' allegations that the Forest Service did not act in good faith as required by the Council's regulations when it consulted with the SHPO during the identification of properties. The SHPO had concurred in the Forest Service's original finding of no adverse effect, but later withdrew its concurrence upon finding that the Forest Service withheld information from the SHPO.
The court observed that "consultation with the SHPO is an integral part of the Section 106 process" and determined that consultation with the SHPO "would be meaningless unless the SHPO has access to available, relevant information." Id. at 862. The court interpreted the consultation requirement in the Council's regulations to mean "informed consultation." Id.
Because the Forest Service did not provide the affidavits of the anthropologist and the elder leader of the Sandia Pueblo to the SHPO in a timely fashion prior to the SHPO's concurrence and had represented to the SHPO that the Pueblo of Sandia had disclosed no evidence of traditional cultural properties, the court found that the Forest Service did not act in good faith when identifying properties.
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