795 F.2d 688 (9th Cir. 1985), 83-2225, Northwest Indian Cemetery Protective Ass'n v. Peterson

Docket Nº:Civ. A. No. 83-2225.
Citation:795 F.2d 688
Party Name:NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCATION, et al., Plaintiffs-Appellees, v. R. Max PETERSON, Chief, U.S. Forest Service, et al., Defendants-Appellants. STATE OF CALIFORNIA, Plaintiff-Appellee, v. John R. BLOCK, Secretary, U.S. Department of Agriculture, et al., Defendants- Appellants.
Case Date:June 24, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 688

795 F.2d 688 (9th Cir. 1985)

NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCATION, et al.,

Plaintiffs-Appellees,

v.

R. Max PETERSON, Chief, U.S. Forest Service, et al.,

Defendants-Appellants.

STATE OF CALIFORNIA, Plaintiff-Appellee,

v.

John R. BLOCK, Secretary, U.S. Department of Agriculture, et

al., Defendants- Appellants.

Civ. A. No. 83-2225.

United States Court of Appeals, Ninth Circuit

June 24, 1985

Argued and Submitted July 9, 1984.

Decision Withdrawn and Rehearing Granted July 22, 1986.

Decided July 22, 1986.

Page 689

Edna Walz, Deputy Atty. Gen., Sacramento, Cal., Marilyn B. Miles, California Indian Legal Services, Eureka, Cal., Michael R. Sherwood, Sierra Club Legal Defense Fund, San Francisco, Cal., for plaintiffs-appellees.

Rodney Hamblin, Asst. U.S. Atty., San Francisco, Cal., Jacques B. Gelin, Robert Klarquist, Attys., U.S. Dept. of Justice, Washington, D.C., for defendants-appellants.

Appeal from the United States District Court for the Northern District of California.

Before DUNIWAY, CANBY and BEEZER, Circuit Judges.

ON REHEARING

CANBY, Circuit Judge:

These consolidated actions contest the plans of the United States Forest Service ("Forest Service") to permit timber harvesting and to construct a road in the Blue Creek Unit of the Six Rivers National Forest in California. The Blue Creek Unit consists of 76,500 acres located in the Siskiyou Mountains. The Forest Service has inventoried approximately 31,500 of these acres as a roadless area. 1 On its northern

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boundary, the Blue Creek Unit adjoins the Eightmile and Siskiyou inventoried roadless areas. Blue Creek, the stream after which the Unit was named, flows into the Klamath River and contains important spawning habitat for several anadromous fish species. Northwest Indian Cemetry Protective Ass'n. v. Peterson, 565 F.Supp. 586, 590 (N.D.Cal.1983).

Contained within the Blue Creek Unit is an area known as the "high country," which is considered sacred by Yurok, Karok, and Tolowa Indians who live in the surrounding region. Although the Indians use specific sites within the "high country" for prayer and religious purposes, the sacred area encompasses the entire region, not just the individual sites. Id. at 591.

In 1972, the Forest Service began to prepare a multiple-use management plan and environmental impact statement (EIS) for the management of the Blue Creek and Eightmile Planning Units within the Six Rivers National Forest. In 1974 and 1975, the Forest Service circulated a draft, supplemental draft and final EIS which proposed various land use management plans for the Blue Creek Unit. In 1981, the "Blue Creek Unit Implementation Plan" (Management Plan) proposed to permit harvesting of 733 million board feet of Douglas fir from the Blue Creek Unit over an 80 year period.

In 1977, the Forest Service issued another draft EIS that proposed alternative routes to complete construction of the last 6.02 miles (Chimney Rock Section) of a paved road from Gasquet, California to Orleans, California (G-O Road). In 1982, the final EIS was issued for the proposed construction of the Chimney Rock Section through the Blue Creek Unit.

Plaintiffs objected to both proposed projects and, after exhausting administrative remedies, filed these actions in the district court. Northwest Indian Cemetery Protective Association, et al. v. Peterson was brought by the Northwest Indian Cemetery Protective Association (seven non-profit corporations and unincorporated associations), four individual plaintiffs of American Indian heritage, and two Sierra Club members. State of California v. Block was brought by the State of California acting through its Native American Heritage Commission. The complaints alleged that the Forest Service decisions to construct the Chimney Rock Section of road and to timber the Blue Creek Unit violated: (1) the first amendment of the United States Constitution; (2) the American Indian Freedom of Religion Act of 1978 (AIFRA), 42 U.S.C. Sec. 1996; (3) the National Environmental Policy Act (NEPA), 42 U.S.C. Sec. 4321 et seq., and the Wilderness Act, 16 U.S.C. Sec. 1131 et seq.; (4) the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. Sec. 1251 et seq.; (5) water and fishing rights reserved to American Indians on the Hoopa Valley Indian Reservation, and defendants' trust responsibility to protect those rights; (6) the Administrative Procedure Act (APA), 5 U.S.C. Sec. 706; (7) the Multi-Use Sustained-Yield Act, 16 U.S.C. Secs. 528-531; and (8) the National Forest Management Act of 1976, 16 U.S.C. Sec. 1600 et seq.

Prior to trial, the district court denied plaintiffs' motion for a preliminary injunction on the understanding that no road construction would begin prior to a ruling on the merits. Northwest Indian Cemetery Protective Ass'n. v. Peterson, 552 F.Supp. 951 (N.D.Cal.1982). After a full trial on the merits, the district court found that the challenged Forest Service decisions violated: (1) the first amendment; (2) NEPA and the Wilderness Act; (3) FWPCA; (4) Indian water and fishing rights on the Hoopa Valley Indian Reservation, and defendants' trust responsibility to protect those rights; and (5) the Administrative Procedure Act. Northwest Indian Cemetery Protective Ass'n. v. Peterson, 565 F.Supp. at 591. The district court accordingly issued an injunction: (1) preventing construction of the G-O road and any timber harvesting or construction of logging roads in the high country; (2) preventing

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timber harvesting or construction of logging roads in the Blue Creek Roadless Area until an EIS was prepared evaluating its wilderness potential as part of adjoining roadless areas; and (3) enjoining timber harvesting and construction of logging roads anywhere in the Blue Creek Unit until an EIS was prepared specifying adequate measures to mitigate the impact of those activities on water quality and fish habitat in Blue Creek, and until studies were completed demonstrating that the proposed logging activities would not violate the FWPCA or reduce the supply of anadromous fish to the Hoopa Valley Indian Reservation. Id. at 606. The government appealed.

While the appeal was pending in this court, Congress enacted the California Wilderness Act of 1984, Pub.L. No. 98-425, 98 Stat. 1619 (1984), which was signed by the President on September 28, 1984. The Act places in wilderness, and out of the reach of logging, most but not all of the high country encompassed by that part of district court's injunction that is based on the first amendment. The Act left open a 1200 foot-wide corridor for completion of the G-0 Road, but Congress appears to have intended not to take any position on whether the Road should be completed. See H.R. Rep. No. 98-40, 98th Cong., 1st Sess. 32; S.Rep. No. 98-582, 98th Cong., 2d Sess. 29; 130 Cong.Rec. No. 113, pp. 18-19 (H.Rep. Sept. 12, 1984) (Remarks of Cong. Seiberling).

ISSUES

On this appeal we address the following issues raised by the Forest Service: 2

(1) Whether the district court erred in enjoining road construction and timbering in the high country of the Blue Creek Unit on the ground that such activity would impermissibly burden the Indian plaintiffs' first amendment right to the free exercise of their religion;

(2) Whether the district court erred in holding that the EISs prepared for the road and land management plans failed adequately to discuss the effects on water quality of the proposed actions;

(3) Whether the district court erred in holding that Forest Service's proposed actions would violate the Federal Water Pollution Control Act and state water quality standards.

DISCUSSION

I. First Amendment

The first amendment prohibits governmental actions that burden an individual's free exercise of religion unless those actions are necessary to fulfill a governmental interest of the highest order that cannot be met in a less restrictive manner. See Wisconsin v. Yoder, 406 U.S. 205, 214-15, 92 S.Ct. 1526, 1532-33, 32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398, 403-09, 83 S.Ct. 1790, 1793-96, 10 L.Ed.2d 965 (1963). In this case the government challenges the district court's conclusion that certain proposed Forest Service management decisions, if implemented, would impermissibly burden the Indian plaintiffs' free exercise rights. Further, the government contends that even if its action would impose such a burden, it has demonstrated a governmental interest sufficient to override the Indians' religious interests.

A. Free Exercise Right

To establish a constitutionally valid free exercise claim, the Indian plaintiffs have the initial burden of demonstrating that governmental actions create a burden on their rights. 3 See School District of

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Abington Township v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 1572, 10 L.Ed.2d 844 (1963); Wilson v. Block, 708 F.2d 735, 740 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983). That the Indians use the Blue Creek high country area for religious purposes and consider the area sacred is not enough to characterize the contemplated Forest Service actions as a burden on free exercise rights. The Indians have to show that the area at issue is indispensable and central to their religious practices and beliefs, and that the proposed governmental actions would seriously interfere with or impair those religious practices. Wilson v. Block, 708 F.2d at 742-44; Sequoyah v. TVA, 620 F.2d 1159, 1164 (6th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 357, 66 L.Ed.2d 216 (1980); Crow v. Gullet, 541 F.Supp. 785, 792 (D.S.D.1982), aff'd, 706 F.2d 856 (8th Cir.), cert. denied, 464 U.S. 977, 104 S.Ct. 413, 78 L.Ed.2d 351 (1983).

The district court here...

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