552 F.Supp. 951 (N.D.Cal. 1982), C-82-4049, Northwest Indian Cemetery Protective Ass'n v. Peterson

Docket Nº:C-82-4049 SAW, C-82-5943 SAW.
Citation:552 F.Supp. 951
Party Name:NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION, a non-profit 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
Case Date:December 17, 1982
Court:United States District Courts, 9th Circuit, Northern District of California
 
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Page 951

552 F.Supp. 951 (N.D.Cal. 1982)

NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION, a non-profit 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.

Dec. 17, 1982

Page 952

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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...

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