NORTHWEST INDIAN CEMETERY, ETC. v. Peterson, C-82-4049 SAW

• Decision Date: 17 December 1982
• Docket Number: C-82-5943 SAW.,No. C-82-4049 SAW,C-82-4049 SAW
• Citation: 552 F. Supp. 951
• Court: U.S. District Court — Northern District of California
• Parties: NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION, a nonprofit corporation; Jimmie James; Sam Jones; Lowana Brantner; Christopher H. Peters; Sierra Club, a non-profit corporation; The Wilderness Society, a non-profit corporation; California Trout, a non-profit corporation; Siskiyou Mountains Resource Council, an unincorporated association; Redwood Region Audubon Society, an unincorporated association; Northcoast Environmental Center, an unincorporated association; Northcoast Environmental Center, a non-profit corporation; Timothy McKay; and John Amodio; Plaintiffs, v. R. Max PETERSON, in his official capacity as Chief, United States Forest Service; John R. Block, in his official capacity as Secretary of the Department of Agriculture; United States Forest Service; and United States of America; Defendants. STATE OF CALIFORNIA, Acting By and Through The NATIVE AMERICAN HERITAGE COMMISSION and The Resources Agency, Plaintiff, v. John R. BLOCK, in his official capacity as Secretary of the United States Department of Agriculture; R. Max Peterson, in his official capacity as Chief of the Forest Service of the United States Department of Agriculture; Zane G. Smith, Jr., in his official capacity as Regional Forester of the California Region of the Forest Service of the United States Department of Agriculture, Defendants.

552 F. Supp. 951

NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION, a nonprofit corporation; Jimmie James; Sam Jones; Lowana Brantner; Christopher H. Peters; Sierra Club, a non-profit corporation; The Wilderness Society, a non-profit corporation; California Trout, a non-profit corporation; Siskiyou Mountains Resource Council, an unincorporated association; Redwood Region Audubon Society, an unincorporated association; Northcoast Environmental Center, an unincorporated association; Northcoast Environmental Center, a non-profit corporation; Timothy McKay; and John Amodio; Plaintiffs, v. R. Max PETERSON, in his official capacity as Chief, United States Forest Service; John R. Block, in his official capacity as Secretary of the Department of Agriculture; United States Forest Service; and United States of America; Defendants.

STATE OF CALIFORNIA, Acting By and Through The NATIVE AMERICAN HERITAGE COMMISSION and The Resources Agency, Plaintiff, v. John R. BLOCK, in his official capacity as Secretary of the United States Department of Agriculture; R. Max Peterson, in his official capacity as Chief of the Forest Service of the United States Department of Agriculture; Zane G. Smith, Jr., in his official capacity as Regional Forester of the California Region of the Forest Service of the United States Department of Agriculture, Defendants.

Nos. C-82-4049 SAW, C-82-5943 SAW.

United States District Court, N.D. California.

December 17, 1982.

COPYRIGHT MATERIAL OMITTED

Julie E. McDonald, Michael R. Sherwood, Sierra Club Legal Defense Fund, San Francisco, Cal., Marilyn B. Miles, Michael S. Pfeffer, David J. Rapport, California Indian Legal Services, Eureka, Cal., George Deukmejian, Atty. Gen. of Cal., Robert H. Connett, Asst. Atty. Gen., Edna Walz, Deputy Atty. Gen., Sacramento, Cal., for plaintiffs.

Joseph Russoniello, U.S. Atty., Rodney H. Hamblin, Asst. U.S. Atty., Chief, Land & Resources Div., San Francisco, Cal., for defendants.

ORDER DENYING MOTIONS FOR A PRELIMINARY INJUNCTION

WEIGEL, District Judge.

These two related suits challenge decisions by the United States Forest Service (1) to complete construction of the last six miles (Chimney Rock Section) of a paved road from Gasquet, California, to Orleans, California (the "G-O road")¹ and (2) to adopt a forest management plan which would permit the harvesting of timber in the "Blue Creek Unit" ("Blue Creek") of Six Rivers National Forest.

The complaints in the two suits allege virtually identical causes of action. The plaintiffs in both allege that the challenged decisions violate: (1) the First Amendment of the Constitution of the United States; (2) the American Indian Freedom of Religion Act of 1978, 42 U.S.C. § 1996; (3) the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.; (4) the National Historic Preservation Act, 16 U.S.C. § 470 et seq.; (5) the Federal Water Quality Control Act, 33 U.S.C. § 1251 et seq.; as well as the Porter-Cologne Water Quality Control Act, Cal. Water Code § 13000 et seq.; (6) fishing and water rights reserved to American Indians on the Hoopa Valley Indian Reservation; (7) defendants' trust responsibility towards the rights of American Indians; (8) the Wilderness Act, 16 U.S.C. § 1131 et seq.; (9) the Administrative Procedure Act, 5 U.S.C. § 706; (10) the National Forest Management Act of 1976, 16 U.S.C. § 1600 et seq.; and (11) the Multiple Use, Sustained Yield Act, 16 U.S.C. §§ 528-31. Plaintiffs move for a preliminary injunction to prevent construction of the Chimney Rock Section of the G-O road.

Plaintiffs in Northwest Indian Cemetery Protective Association, et al. v. Peterson, et al., C-82-4049 SAW, are seven non-profit corporations and unincorporated associations, Northwest Indian Cemetery Protective Association, Sierra Club, The Wilderness Society, California Trout, Siskiyou Mountains Resource Council, Redwood Region Audubon Society, and Northcoast Environmental Center, four individual plaintiffs of American Indian heritage (Jimmie James, Sam Jones, Lowana Brantner, and Christopher H. Peters), and two Sierra Club members (Timothy McKay and John Amadio). Defendants in that case are R. Max Peterson, Chief, U.S. Forest Service, and John R. Bock, Secretary of the Department of Agriculture. The State of California, acting through its Native American Heritage Commission and Resources Agency, is the sole plaintiff in California v. Block, et al., C-82-5943 SAW. Defendants in this case are Secretary of Agriculture Block, Forest Service Chief Peterson, and Zane G. Smith, Jr., Regional Forester of the California Region of the Forest Service.

In order to obtain a preliminary injunction, plaintiffs must show either probable success on the merits and the possibility of irreparable injury or that serious questions regarding the merits are raised and the balance of hardships tips sharply in their favor. Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1201 (9th Cir.1980). The Court has concluded, for reasons now to be stated, that the plaintiffs have not clearly met either of these standards and that the equities call for an early trial rather than now granting the motion for preliminary injunctive relief.

1. Re First Amendment Claims.

Plaintiffs contend that construction of the Chimney Rock Section will violate the rights of the Indian plaintiffs to practice their religion. Specifically, plaintiffs assert that the Chimney Rock area is sacred "high country" to the Yurok, Karok, and Tolowa Indians, who use the area for religious rites and for the training of "medicinal and spiritual practitioners who serve these Indian communities." The construction of the road, they argue, and the accompanying disruptive intrusions such as logging activity and increased road traffic, are "totally incompatible with the ritual uses of this sacred country." Plaintiffs submit numerous affidavits, as well as archeological and ethnographic studies commissioned by the Forest Service, to support their claim that this "sacred region" is at "the very core of Northwest Indian religious beliefs and practices."

The First Amendment, of course, protects unorthodox as well as orthodox religious belief and practice. Thomas v. Review Bd. of the Indian Employment Security Div., 450 U.S. 707, 714, 101 S.Ct. 1425, 1430, 67 L.Ed.2d 624 (1981); Teterud v. Burns, 522 F.2d 357, 360 (8th Cir.1975). Furthermore, the fact that the asserted religious activity occurs on public land does not necessarily defeat plaintiffs' claim. See Badoni v. Higginson, 638 F.2d 172, 176 (10th Cir.1980); Sequoyah v. Tennessee Valley Authority, 620 F.2d 1159, 1164 (6th Cir. 1980). The government must manage its property in a manner that does not needlessly impair the ability of its citizens to exercise their religious freedom. See Badoni, supra, at 176, 179 (government must not deny exercise of First Amendment rights compatible with public use of public property).

The proposed completion of the G-O road does not, however, unlawfully burden the Indian plaintiffs' exercise of their religion. Although the government must allow them reasonable access to public lands in order to follow their religious practices, defendants are not obligated to control or limit public access to public lands in order to facilitate those practices. Thus, the use by a relatively few persons of public lands for religious purposes does not release the government from its statutory responsibility to manage such lands for the benefit of the public at large. See Badoni, supra, at 179; Sequoyah, supra, at 1164-65; Crow v. Gullet, 541 F.Supp. 785, 791-92 (D.S.D. 1982); Hopi Indian Tribe v. Block, 8 I.L.R. 3073, 3074-75 (D.D.C.1981). Since the proposed construction imposes no unlawful burden on the Indian plaintiffs' religious freedom, the Court need not determine whether defendants assert an "overriding interest." See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S.Ct. 1526, 1532, 32 L.Ed.2d 15 (1972); Badoni, supra, at 176-77.

2. Re American Indian Religious Freedom Act of 1978.

Plaintiffs assert that the proposed completion of the G-O road violates their rights under the American Indian Religious Freedom Act of 1978, 42 U.S.C. § 1996. That Act requires federal agencies to "evaluate their policies and procedures with the aim of protecting Indian religious freedoms." Hopi, supra, at 3076. On the present record, it appears that defendants have complied with this mandate. They commissioned studies on Indian religious beliefs and practices. On the basis of those studies, they selected a route for the Chimney Rock Section which minimized the adverse visual and audible impact on Chimney Rock itself which some Indians consider a religious site and use for religious practices. See Final Environmental Impact Statement, Gasquet-Orleans Road (Chimney Rock Section) (March 1982), at 52-53. Hence, based on the record and the declarations submitted by both parties, defendants appear to have complied with the requirements of the Act.

3. Re National Environmental Policy Act.

Plaintiffs also claim that the Final Environmental Impact Statement ("EIS") evaluating the Chimney Rock Section of the G-O road was in violation of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. Plaintiffs assert the EIS (1) inadequately discussed the impacts of the proposed road, and (2) inadequately discussed alternatives.

The appropriate standard for review of the adequacy of an EIS is well established in this circuit:

Whether an EIS will be found in compliance with NEPA involves an evaluation of whether the discussion of environmental impacts "reasonably sets forth sufficient information to enable the decision-maker to consider the environmental factors and make a reasoned decision."

Adler v. Lewis, 675 F.2d 1085, 1096 (9th Cir.1982) (citations omitted). Under this standard, plaintiffs' claim is unlikely to succeed on the merits. Defendants undertook extensive analysis of the...