Muckleshoot Indian Tribe v. U.S. Forest Service

• Citation: 177 F.3d 800
• Decision Date: 19 May 1999
• Docket Number: 98-35231,Nos. 98-35043,s. 98-35043
• Parties: 99 Cal. Daily Op. Serv. 3724, 1999 Daily Journal D.A.R. 4767 MUCKLESHOOT INDIAN TRIBE, Plaintiff-Appellant, v. U.S. FOREST SERVICE; Dennis Bshor, Supervisor, Mt. Baker-Snoqualmie National Forest; Dan Glickman, U.S. Secretary of Agriculture; Bruce Babbitt, U.S. Secretary of the Interior, Defendants-Appellees. Weyerhaeuser Co., Defendant-Intervenor-Appellee. Pilchuck Audubon Society; Huckleberry Mountain Protection Society, Plaintiffs-Appellants, v. U.S. Forest Service; Dennis Bshor, Supervisor, Mt. Baker-Snoqualmie National Forest; Dan Glickman, U.S. Secretary of Agriculture; United States of America; Bruce Babbit, U.S. Secretary of the Interior, Defendants-Appellees, and Weyerhaeuser Co., Defendant-Intervenor-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 800

177 F.3d 800

99 Cal. Daily Op. Serv. 3724, 1999 Daily

Journal D.A.R. 4767

MUCKLESHOOT INDIAN TRIBE, Plaintiff-Appellant, v. U.S. FOREST SERVICE; Dennis Bshor, Supervisor, Mt.

Baker-Snoqualmie National Forest; Dan Glickman, U.S.

Secretary of Agriculture; Bruce Babbitt, U.S. Secretary of

the Interior, Defendants-Appellees.

Weyerhaeuser Co., Defendant-Intervenor-Appellee.

Pilchuck Audubon Society; Huckleberry Mountain Protection

Society, Plaintiffs-Appellants, v. U.S. Forest Service; Dennis Bshor, Supervisor, Mt.

Baker-Snoqualmie National Forest; Dan Glickman, U.S.

Secretary of Agriculture; United States of America; Bruce

Babbit, U.S. Secretary of the Interior, Defendants-Appellees,

and

Weyerhaeuser Co., Defendant-Intervenor-Appellee.

Nos. 98-35043, 98-35231.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 1999.

Filed May 19, 1999.

Gregory M. O'Leary, Seattle, Washington, and Robert L. Otsea, Jr., Auburn, Washington, David S. Vogel, Seattle, Washington, for plaintiffs-appellants.

Lisa E. Jones, United States Department of Justice, Washington, D .C., for federal defendants-appellees, United States Forest Service, et al.; Albert Gidari, Michael Himes, Galen G. Schuler, Perkins Coie, Seattle, Washington, for defendant-intervenor-appellee, Weyerhaeuser Company.

Steven C. Moore, Native American Rights Fund, Boulder, Colorado, for amicus curiae National Congress of American Indians.

Appeal from the United States District Court for the Western District of Washington; William L. Dwyer, District Judge, Presiding. D.C. No. CV-97-00786-WLD.

Before: FLETCHER, REINHARDT and THOMAS, Circuit Judges.

ORDER

Pursuant to the opinion issued concomitantly with this order, we hereby enjoin any further activities on the land such as would be undertaken pursuant to the Huckleberry Mountain Exchange Agreement as executed by the United States and the Weyerhaeuser Company on March 28, 1997, until such time as the Forest Service satisfies its statutory obligations in a manner consistent with this Court's opinion.

OPINION

PER CURIAM.

Plaintiffs Muckleshoot Indian Tribe, Pilchuck Audubon Society, and Huckleberry Mountain Protection Society appeal the district court's grant of summary judgment on consolidated challenges to a land exchange between the United States Forest Service and Weyerhaeuser Company. Plaintiffs contend that the Forest Service violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332, and the National Historic Preservation Act ("NHPA"), 16 U.S.C. § § 470-470w. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

I. BACKGROUND

Huckleberry Mountain, the land subject to the dispute in this case, is located in the Green River watershed in the Mt. Baker-Snoqualmie National Forest ("the Forest") in the state of Washington. The Forest contains sixteen percent of the wilderness in the Pacific Northwest. Thirteen percent (259,545 acres) of the 1,983,774 acres within the National Forest boundary are privately owned, primarily by Weyerhaeuser and other large corporations. Most of the privately-owned lands are in the southern portion of the Forest, and are intermingled with federal lands in a checkerboard pattern of ownership that remains from the federal land grants to railroads a century ago.

Motivated in large part by a desire to unify land ownership, the United States Forest Service ("the Forest Service") and Weyerhaeuser Company ("Weyerhaeuser") began negotiations for a series of land exchanges pursuant to 43 U.S.C. § 1716, which authorizes the exchange of public lands within the National Forest system where "the public interest will be well served" by the exchange. In the 1980s, the Forest Service negotiated a land exchange with Weyerhaeuser and the Burlington Northern Railroad Company involving lands near Huckleberry Mountain. Under the terms of the Alpine Lakes Exchange, as it became known, the United States conveyed a total of 21,676 acres of federally-owned Forest land to Weyerhaeuser and Burlington Northern in exchange for other property owned by the two companies. In the present appeal, plaintiffs challenge another land exchange between Weyerhaeuser and the Forest Service, the Huckleberry Mountain Exchange ("the Exchange"), in which the Forest Service again traded old growth forest lands in the Huckleberry Mountain area. Many of the parcels conveyed by the Forest Service in the Alpine Lakes Exchange are near or contiguous to federal lands that are part of the Exchange at issue in this appeal.

Although land within the Huckleberry Mountain Exchange Area had been tentatively identified during the Alpine Lakes Exchange negotiations between 1984 and 1987, negotiations began anew in 1988 with a revised list of federal land under consideration for exchange. In July 1991, Weyerhaeuser and the Forest Service signed a Statement of Intent to enter into an exchange, which identified the parcels to be included in the exchange. Between 1992 and 1994, the Forest Service conducted surveys regarding wetlands, wildlife, rare plants, hazardous waste, cultural resources and other matters, and subsequently reduced the federal acreage proposed for transfer.

The Forest Service initiated public consultation and comment and developed a list of six exchange alternatives. In July 1996, the Forest Service released a draft Environmental Impact Statement ("EIS"), pursuant to NEPA, 42 U.S.C. § 4332(2)(C), and mailed over 300 copies to interested parties. It then conducted three open meetings in communities near the Forest. Among those who provided comments on the Draft EIS was the Muckleshoot Indian Tribe (the "Tribe").

On November 26, 1996, the Forest Service issued a final EIS after receiving comments on the draft EIS. The EIS considered three alternatives: a "no action" alternative, and two closely related exchange alternatives. ¹ Concurrently, the Forest Service issued a Record of Decision that called for an implementation of the Exchange through a modification of "Alternative No. 3" as evaluated in the EIS. ²

The Pilchuck Audubon Society and the Huckleberry Mountain Protection Society (collectively "the Societies") and the Tribe lodged separate appeals of the EIS and the ROD with the Office of the Regional Forester. These appeals were denied on March 7, 1997. On March 28, 1997, pursuant to the ROD, Weyerhaeuser and the Forest Service executed an exchange agreement under which Weyerhaeuser conveyed to the United States 30,253 acres of land in and around Mt. Baker National Forest in return for 4,362 acres of land in the Huckleberry Mountain area. ³ In addition, Weyerhaeuser donated to the United States 962 acres to the Alpine Lakes Wilderness and 1,034 acres for Forest Service management. The National Forest lands that Weyerhaeuser received included old growth, commercial grade timber. The Forest Service also exchanged to Weyerhaeuser intact portions of the Huckleberry Divide Trail, a site important to the Tribe and that the Forest Service found eligible for inclusion in the National Register for Historic Preservation. Weyerhaeuser gave the Forest Service lands that were, for the most part, heavily logged and roaded. Weyerhaeuser intends to log the lands it received in the Exchange.

In the spring of 1997, the Tribe and the Societies commenced separate actions in the district court seeking declaratory and injunctive relief to halt the Huckleberry Mountain Exchange. The district court consolidated the two actions and granted Weyerhaeuser's motion to intervene because it was party to the Exchange. The combined action, brought pursuant to the Administrative Procedures Act, 5 U.S.C. §§ 701-06, alleged violations of the Federal Lands Policy and Management Act, 43 U.S.C. § 1701 et seq., the General Exchange Act, 16 U.S.C. § 485; the Weeks Act, 16 U.S.C. § 516; the National Forest Management Act, 16 U .S.C. 1600 et seq.; NHPA, 16 U.S.C. § 470 et seq., and NEPA, 42 U.S.C. 4321 et seq. The Tribe also asserted that the government breached its duty of trust to the Tribe. The district court denied all of these claims.

Plaintiffs appeal only their claims under NHPA and NEPA. The plaintiffs did not seek a stay of the district court's order pending appeal. The Exchange was finalized on March 12, 1998.

The United States has waived sovereign immunity in this case pursuant to 5 U.S.C. § 702. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because the district court decided the case on a motion for summary judgment, we review that determination de novo. Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1376 (9th Cir.1998). An agency's factual findings should be "overturned only if they are arbitrary and capricious." Sierra Club v. Clark, 756 F.2d 686, 691 (9th Cir.1985).

II. THE NATIONAL HISTORIC PRESERVATION ACT CLAIMS

The Muckleshoot Tribe is made up principally of descendants of tribes or bands that were parties to the Treaty of Point Elliott and the Treaty of Medicine Creek. The Tribe was organized pursuant to the Indian Reorganization Act of June 18, 1934. See United States v. State of Washington, 384 F.Supp. 312, 366 (W.D.Wash.1974). The United States, acting by and through the Secretary of the Interior and his duly authorized delegatees, has consistently recognized the Muckleshoot Tribe as the political successor in interest to certain of the Indian tribes, bands and villages that were parties to the Treaty of Point Elliott or the Treaty of Medicine Creek. Id.

The Indian ancestors to the present Muckleshoot Tribe included people from villages on the Green and White Rivers that form part of the drainage for Huckleberry Mountain. The Tribe alleges that for thousands of years, the ancestors of present tribal members used Huckleberry Mountain for cultural, religious, and resource purposes--uses that continue to the present day. The Forest Service lands exchanged to Weyerhaeuser were part of the Tribe's ancestral grounds.

Section 10 of NHPA...