Case 155

Muckleshoot Indian Tribe v. United States Forest Service, 177 F.3d 800 (9th Cir. 1999).

Plaintiffs-appellants Muckleshoot Indian Tribe, et al. ("Muckleshoot Tribe"), argued that the Forest Service violated the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA) when it exchanged lands with Weyerhauser Company ("Huckleberry Exchange"). Although the district court had granted summary judgment in favor of the Forest Service, the circuit court reversed.

With the goal of unifying land ownership, thereby enhancing resource conservation and management, the Forest Service traded lands with Weyerhauser, a logging company. Weyerhauser intended to log the lands it received in the Huckleberry Exchange. Included within the lands traded to Weyerhauser were intact portions of the Huckleberry Divide Trail, a historic property important to the Muckleshoot Tribe.

On its appeal, the Muckleshoot Tribe argued that the Forest Service had violated NHPA by 1) failing to consult adequately with the tribe regarding the identification of traditional cultural properties; 2) inadequately mitigating the effects on historic properties; and 3) failing to nominate certain sites to the National Register. The circuit court agreed regarding the claim of inadequate mitigation.

The circuit court found that the Forest Service had adequately consulted with the tribe. The circuit court noted that, unlike the case in Pueblo of Sandia v. United States (see Case 132), the Forest Service had not withheld relevant information nor shown bad faith. Moreover, the record showed that the Forest Service had researched historic sites, communicated several times with the tribe, and excluded another site of importance to the tribe from the Huckleberry Exchange. The circuit court noted that the Forest Service could have been more sensitive to the tribe regarding other sites, the information of which the tribe refused to provide. Nevertheless, the Forest Service continued seeking the information over a period of time and had previously conducted research of its own. The circuit court was unable to conclude that the Forest Service had failed to make a reasonable and good faith effort to identify historic properties of importance to the tribe.

However, the circuit court found that the Forest Service violated NHPA by failing to adequately mitigate the adverse effect of the exchange on the Huckleberry Divide Trail. As stated before, Weyerhauser planned to log the lands it would get in the Huckleberry Exchange. Such logging could adversely affect the trail and render it ineligible for the National Register. The Section 106 regulations in place at the time of the exchange provided three options under which a Federal agency could mitigate an otherwise adverse effect so that it could be considered as not being adverse. The two options at issue in this case set forth that an adverse effect could be considered not adverse where 1) appropriate research was conducted, provided that "the historic property is of value only for its potential contribution to archeological, historical, or architectural research"; or 2) in the context of a land transaction, "adequate restrictions or conditions [were] included to ensure preservation of the property's significant historic features." The Forest Service argued it was correctly utilizing these two options by mitigating the effects through photographing and mapping the trail before the exchange.

The circuit court, however, found that such activities did not meet the requirements of the two mitigating options listed above. The first option was inapplicable since the Muckleshoot Tribe valued the trail for more than its potential contribution to scientific research. The second option was inapplicable as well since photographing and mapping would not preserve the trail's significant historic features. The circuit court pointed to a letter by the Washington State Historic Preservation Officer indicating that documentation was "probably not an effective mitigation measure." Having found this violation of NHPA, the court declined to address the third NHPA allegation.

Plaintiffs-appellants also argued that the Forest Service violated NEPA through 1) inadequate identification and analysis of cumulative environmental impacts in the Environmental Impact Statement (EIS); 2) inadequate definition of the purpose and need for the land exchange; and 3) insufficient identification and evaluation of alternatives for the exchange. The circuit court agreed with the first and third NEPA arguments of the plaintiffs-appellants.

The Muckleshoot Tribe contended that the EIS did not adequately consider the cumulative impacts of logging connected to a land exchange in 1984, to current logging activities, and to a future land exchange in the vicinity. The district court had held that the Forest Service did not need to consider such impacts since the 1984 land exchange was already considered in an earlier land management plan, and the future land exchange was too uncertain. The circuit court disagreed. It first noted that NEPA allowed reference to past consideration (also known as "tiering") but only with regard to an EIS—not to a land management plan. Furthermore, the EIS for the land management plan did not account for the specific impacts of the Huckleberry Exchange. The Huckleberry Exchange was only mentioned in a pool of possible projects, without any detail concerning it or its impact.

Furthermore, the cumulative impact analysis on the EIS for the Huckleberry Exchange was deemed by the circuit court to be too general and one-sided. It was devoid of specific, reasoned conclusions. In addition, it did not evaluate the impact of logging on the natural resources on the land transferred to Weyerhauser.

Regarding the future land exchange in the vicinity ("Plum Creek Exchange"), the circuit court agreed with the tribe that such an exchange was "reasonably foreseeable" and that its cumulative impacts should have been adequately analyzed. Before the Huckleberry Exchange EIS was issued, the Forest Service had prepared a summary of the Plum Creek Exchange, and the Secretary of Agriculture had formally announced the exchange to the public.

The circuit court disagreed with the plaintiffs-appellants' assertion that the purpose and need in the EIS of the Huckleberry Exchange was too narrow. The purpose and need was to "consolidate ownership and enhance future resources conservation and management by exchanging parcels of National Forest System and Weyerhauser land." The circuit court found the breadth of the purpose and need to be reasonable.

However, the circuit court held that the Forest Service failed to consider an adequate range of alternatives to meet the stated purpose and need of the Huckleberry Exchange. The Forest Service only considered three alternatives: a no action alternative and two alternatives that only differed in that one labeled the land transfer as a donation, rather than as an exchange, and added 141 acres of donated land. The Forest Service failed to consider an alternative where it would purchase the land from Weyerhauser rather than exchanging for it. The circuit court also found that the Forest Service should have closely considered a trade involving deed restrictions or other modifications to the acreage involved.

Finally, the circuit court considered Weyerhauser's argument that the case was moot because the patents and deed to the exchanged lands had been conveyed and logging permits from Washington had been secured. Weyerhauser attorneys also stated in oral arguments that their company had already "destroyed" at least 10 percent of the land it obtained on the exchange. The circuit court held that the case was not moot. It noted that conveyance of property does not moot a case, and that Federal courts are authorized to void a property transaction. The evidentiary burden needed to establish mootness was not met. The circuit court then enjoined any further activities pursuant to the Huckleberry Exchange until the Forest Service satisfied its NHPA and NEPA obligations.

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