Case 85

Wilson v. Block, 708 F.2d 735 (D.C. Cir.), cert. denied, 464 U.S. 956 (1983).

Plaintiffs sought to prevent the Secretary of Agriculture, through the Forest Service, from authorizing expansion of the Snow Bowl ski area in the Coconino National Forest in Arizona. Plaintiffs claimed that mountains in the area, the San Francisco Peaks, were eligible for the National Register of Historic Places because of their historic association with Native American religious activities and that the proposal would affect two nearby properties listed in the National Register, the Fern Mountain Ranch and the C. Hart Merriam Base Camp. Plaintiffs argued that the Forest Service was required to comply with the National Historic Preservation Act (NHPA) before approving the changes to the facility. The district court granted partial summary judgment for defendants on all counts except those based on NHPA. On that issue, the court remanded to the Forest Service for compliance with the statute and the regulations of the Advisory Council on Historic Preservation implementing Section 106 of NHPA.

After the Forest Service consulted with the State Historic Preservation Officer (SHPO) and conducted archeological surveys of 35 percent of the permit area, it concluded that the project area contained no historic properties, the project would not affect the historic qualities of the ranch and camp, and the peaks were not eligible for the National Register. The SHPO concurred. The Forest Service did not request a formal determination of eligibility for the peaks from the Secretary of the Interior because the Forest Service and the SHPO had agreed that the peaks were not eligible, although for different reasons.

The D.C. Circuit affirmed the district court's subsequent dismissal of the action. First, the court found that the partial surveys conducted the Forest Service were sufficient. The Council's regulations do not require agencies to survey 100 percent of the impact area, and the scope of a survey varies from case to case. A complete survey is not necessary when the partial survey and other evidence indicate that a complete survey would be fruitless. 708 F.2d at 754.

Second, the court upheld the Forest Service's determination of no effect on the ranch and the camp. The Council's criteria of adverse effect apply only to those characteristics of a property that qualify it for inclusion in the National Register. Id. at 755.

Plaintiffs asserted that a question existed under Section 800.4(a)(3) of the Council's regulations as to the eligibility of the peaks. The court disagreed, finding that a question exists only when the agency and the SHPO disagree as to the eligibility of a property or the agency determines that a question exists. Because neither circumstance occurred here, there was no need to seek a formal determination of eligibility from the Secretary of the Interior. That the Forest Service and the SHPO used different reasoning in reaching the same conclusion was immaterial. Id. at 756.

Finally, plaintiffs challenged the substance of the Forest Service's finding that the peaks were ineligible for the Register, arguing that other similar mountains in the area had been determined to be eligible. The court sustained the agency's determination, finding no evidence of abuse of discretion. Id.

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