565 F.Supp. 586 (N.D.Cal. 1983), C-82-4049, Northwest Indian Cemetery Protective Ass'n v. Peterson

Docket Nº:C-82-4049 SAW, C-82-5943 SAW.
Citation:565 F.Supp. 586
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:May 24, 1983
Court:United States District Courts, 9th Circuit, Northern District of California
 
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565 F.Supp. 586 (N.D.Cal. 1983)

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, 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, 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.

May 24, 1983

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Joseph P. Russoniello, U.S. Atty., Rodney H. Hamblin, Asst. U.S. Atty., San Francisco, Cal., for defendants.

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., John K. Van De Kamp, Atty. Gen., of the State of Cal., Robert H. Connett, Asst. Atty. Gen., Edna Walz, Deputy Atty. Gen., Sacramento, Cal., for plaintiff.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

WEIGEL, District Judge.

These two suits, consolidated for trial, challenge decisions by the United States Forest Service (Forest Service) (1) to complete construction of the last 6.02 miles

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(Chimney Rock Section) of a paved road from Gasquet, California, to Orleans, California (the "G-O road"), and (2) to adopt a forest management plan providing for the harvesting of timber for the Blue Creek Unit of Six Rivers National Forest.

Plaintiffs in Northwest Indian Cemetery Protective Association, 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 Branter, and Christopher H. Peters), and two Sierra Club members (Timothy McKay and John Amadio). Defendants are R. Max Peterson, Chief, Forest Service, and John R. Block, Secretary of the United States Department of Agriculture. The State of California, acting through its Native American Heritage Commission, is the sole plaintiff in California v. Block, et al., C-82-5943 SAW. Defendants are Secretary of Agriculture Block, Forest Service Chief Peterson, and Zane G. Smith, Jr., Regional Forester of the California Region of the Forest Service.

The 67,500 acre Blue Creek Unit is located in Del Norte and Humboldt counties in the northwestern corner of California. Approximately 31,100 acres of the Unit is virgin Douglas Fir forest, and has been inventoried by the Forest Service as a roadless area. 1 On its northern boundary, the Unit adjoins the Eight-mile and Siskiyou inventoried roadless areas. Blue Creek itself, located within the Unit, is a tributary to the Klamath River and contains important spawning habitat for several anadromous fish species. 2

On November 12, 1974, the Forest Service first proposed in a Draft Environmental Statement (DES) various land use management plans for the Blue Creek Unit. See Def.Ex. A. The Forest Service then issued a Supplemental DES (SDES) in 1975, see Def.Ex. B, and a Final Environmental Statement (FES) on May 21, 1975. See Def.Ex. C. On February 19, 1981, Regional Forester Smith selected Alternative E from among the alternative land use plans proposed in the FES. The Forest Service subsequently modified Alternative E and issued its recommended management plan in a document entitled "Blue Creek Unit Implementation Plan" (the Management Plan). See Def.Ex. J. The Management Plan calls for the harvesting over the next 80 years of 733 million board feet of timber from the Blue Creek Unit. Id. at 4.

On November 7, 1977, the Forest Service proposed various alternative routes for the Chimney Rock Section of the G-O road designed to link the existing Summit Valley and Dillon-Flint Sections of the road. These various routes are all located within the Blue Creek Unit. See Def.Ex. E. On March 2, 1982, Regional Forester Smith selected Alternative D-4 as the proposed route for the Chimney Rock Section. See Def.Ex. G.

Following exhaustion of their administrative appeals of both Forest Service decisions, plaintiffs filed these suits alleging 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 (AIFRA), 42 U.S.C. § 1996; (3) the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the Wilderness Act, 16 U.S.C. § 1131 et seq.; (4) the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; (5) water and fishing rights reserved to American Indians on the Hoopa Valley Indian Reservation, and defendants'

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trust responsibility towards those rights; (6) the Administrative Procedure Act, 5 U.S.C. § 706; (7) the Multiple Use Sustained-Yield Act, 16 U.S.C. §§ 528-31; and (8) the National Forest Management Act of 1976, 16 U.S.C. § 1600 et seq. Plaintiffs moved for a preliminary injunction to prevent the Forest Service from soliciting competitive bids on the Chimney Rock Section of the G-O road. On December 17, 1982, the Court denied preliminary injunctive relief and, based upon defendants' assurance that no construction would occur prior to the Court's ruling on the merits, instead chose to conduct an early trial. See Northwest Indian Cemetery Protective Ass'n v. Peterson, 552 F.Supp. 951 (N.D.Cal.1982).

Based upon the evidence presented at trial, the Court finds that the challenged Forest Service decisions violate (1) the First Amendment of the Constitution of the United States; (2) NEPA and the Wilderness Act; (3) the Federal Water Pollution Control Act; (4) Indian water and fishing rights on the Hoopa Valley Indian Reservation, and defendants' trust responsibility towards those rights; and (5) the Administrative Procedure Act. This memorandum constitutes the Court's findings of fact and conclusions of law.

I. The First Amendment

In reviewing the nature of the religious beliefs involved in this case, it must be remembered that their unorthodox character is no basis for denial of the protection of rights guaranteed by the Free Exercise Clause. See, e.g., Thomas v. Review Bd., 450 U.S. 707, 714, 101 S.Ct. 1425, 1430, 67 L.Ed.2d 624 (1981). Thus, "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection." Id.

The northeastern corner of the Blue Creek Unit is considered sacred land by members of the Yurok, Karok, and Tolowa Indian tribes. 3 This region is known as the "high country." Although the high country includes the highest mountain peaks in this corner of the Blue Creek Unit, such as Chimney Rock, Doctor Rock, and Peak 8, the area considered sacred encompasses an entire region rather than simply a group of individual sites (Def.Ex. G-K, Theodoratus Report (hereinafter "Theo.Rpt."), at 419). The Indian plaintiffs and the State of California assert that either construction of Alternative D-4 (hereinafter the Chimney Rock Section) or implementation of the Management Plan would desecrate the high country in violation of the Indian plaintiffs' rights under the Free Exercise Clause of the First Amendment.

The Indian plaintiffs' use of the high country for religious purposes is not in dispute. Ceremonial use of the high country by the Yurok, Karok, and Tolowa tribes dates back to the early nineteenth century (Trial Transcript (hereinafter "Tr.") at 267-68) and probably much earlier (Theo.Rpt. at 230-73, 386). Members of these tribes currently make regular use of the high country for several religious purposes. Individuals hike into the high country and use "prayer seats" located at Doctor Rock, Chimney Rock, and Peak 8 to seek religious guidance or personal "power" through "engaging in emotional [and] spiritual exchange with the creator" (Tr. at 79). Such exchange is made possible by the solitude, quietness, and pristine environment found in the high country. Certain key participants in tribal religious ceremonies such as the White Deerskin and Jump Dances 4 must visit the high country prior to the ceremony to purify themselves and to make "preparatory medicine" (Theo.Rpt. at 46). The religious

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power these individuals acquire in the high country lends meaning to these tribal ceremonies, thereby enhancing the spiritual welfare of the entire tribal community (Tr. at 110-13; Theo.Rpt. at 417). Medicine women in the tribes travel to the high country to pray, to obtain spiritual power, and to gather medicines (Tr. at 237-39). They then return to the tribe to administer to the sick the healing power gained in the high country through ceremonies such as the Brush and Kick Dances ( Id.;...

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