Case 151

Hoonah Indian Association v. Morrison, 170 F.3d 1223 (9th Cir. 1998).

Plaintiffs, Hoonah Indian Association et al., sought an injunction against two timber sales in the Tongass National Forest of Alaska. Both plaintiffs filed a claim under the Alaska National Interest Lands Conservation Act, which is beyond the scope of this report. However, the Sitka Tribe also filed a National Historic Preservation Act claim as to the Northwest Baranof sale. The Sitka argued that defendant, the U.S. Forest Service, improperly handled the designation and protection of the Kiks.adi Survival March path.

However, the appellate court agreed with the district court's findings, stating that the Forest Service applied the National Register standards to this particular area following a comprehensive search for possible historic properties during the preparation of its Environmental Impact Statement (EIS). Out of the 45 properties identified, 39 were found eligible for inclusion on the National Register. The Kiks.adi Survival March path was not one of these 39 sites. The Forest Service, along with the State Historic Preservation Officer (SHPO), approved this list.

The Sitka Tribe agreed that the 39 sites would not be affected by the timber sale. The SHPO determined that the Kiks.adi Survival March path was not eligible. The tribe did not appeal the SHPO's decision. The court believed that the tribe could have appealed that decision under 36 C.F.R. Section 60.12, and that failure to do so made the decision unchallengeable for failure to exhaust administrative remedies.

However, the tribe did appeal the EIS on the ground that the Forest Service did not recommend listing the Kiks.adi Survival March trail. The courts' review of this was limited to whether this decision was arbitrary or capricious. Although the tribe argued that the Forest Service never applied the National Register criteria to the Survival March routes, the court found that the record showed that it did. The trail did not fit into the definition because, after extensive research by the Forest Service, no evidence could be found to point to any one particular place as the National Register criteria require. The criteria require an "actual location." The court found the "actual location" of the Kiks.adi route to be unknown, and the tribe's own submission called it a "symbolic" location as opposed to an "actual" one.

In affirming the denial of the injunction, the court stated that the fact that important things happen in a general area is not enough to make the area a "site." For it to qualify for Federal designation as a historical site, there has to be some good evidence of just where the site is and what its boundaries are. The Keeper of the National Register agreed in her report on this issue.

In conclusion, the court stated that the district judge correctly determined that because the tribe could not prevail on the merits, and the Forest Service determinations were not arbitrary or capricious, the tribe's request for an injunction against the timber sales should be denied.

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