Franco v. U.S. Forest Serv., No. 2:09-cv-01072-KJM-KJN

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
PartiesCALEEN SISK FRANCO, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant.
Decision Date31 March 2016
Docket NumberNo. 2:09-cv-01072-KJM-KJN

CALEEN SISK FRANCO, et al., Plaintiffs,

No. 2:09-cv-01072-KJM-KJN


March 31, 2016


Plaintiffs, the Winnemem Wintu Tribe (the "WWT") and its leaders, allege defendant United States Forest Service ("USFS" or "Forest Service") violated federal laws intended to protect and preserve religious and culturally significant sites. Fourth Am. Compl. (FAC, ECF No. 121). The sites, located in the Shasta Lake and McCloud River area of California, are: 1) Nosoni Creek; 2) the Dekkas site; 3) Coonrod Flat; 4) Buck Saddle; 5) Rocky Ridge; and 6) Antler's Bridge. Under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., the WWT requests declaratory and injunctive relief to ensure defendant complies with the statutory and regulatory requirements of the National Historic Preservation Act ("NHPA"), 54 U.S.C. §§ 300101 et seq., and National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370. The court held a hearing on the parties' cross-motions for summary judgment on June 5, 2015, at which Courtney Bateman appeared for plaintiffs and Lynn Trinka

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Ernce appeared for defendant. As explained below, the court GRANTS in part and DENIES in part each motion for summary judgment.


A. Procedural History

Plaintiffs filed suit on April 19, 2009, naming several federal agencies and individuals as defendants. Original Compl. ¶¶ 5-12, ECF No. 1. Several rounds of motion practice have narrowed both the claims and defendants, see ECF Nos. 24, 51, 82, 120, and plaintiffs filed the now-operative Fourth Amended Complaint on August 7, 2014, ECF No. 121.

The USFS lodged the Administrative Record on November 20, 2013, Notice Filing Administrative Record, ECF No. 105, and a corrected administrative record on November 27, 2013, Corrected Administrative Record, ECF No. 106. Plaintiffs filed a motion to compel the completion of the Administrative Record on February 28, 2014. ECF No. 107. The court granted the motion in part and denied it in part on July 24, 2014, and the USFS filed a Supplemental Administrative Record on September 30, 2014. ECF No. 126.

At the October 22, 2014 status conference, the parties agreed to resolve the matter through cross-motions for summary judgment. ECF No. 129. The court set a briefing schedule for the motions, and defendant USFS filed its motion for summary judgment on December 18, 2014. ECF No. 131. Plaintiffs filed an opposition and cross-motion on January 30, 2015, along with a motion to strike certain exhibits from defendant's motion. ECF Nos. 133-134. Defendant has filed an opposition. ECF No. 136. On March 13, 2015, plaintiffs filed a reply and a second motion to strike. ECF Nos. 139, 140. On April 8, 2015, plaintiffs filed a notice of supplemental authority, Confederated Tribes & Bands of the Yakama Nation v. U.S. Fish & Wildlife Serv., No. 14 -3052-TOR, 2015 WL 1276811 (E.D. Wash. Mar. 20, 2015). See ECF No. 144.

B. Threshold Record Considerations

1. Scope of Plaintiffs' Motions

As a threshold matter, the court considers defendant's argument that plaintiffs have made arguments or raised claims in their motion for summary judgment that are not encompassed by the Fourth Amended Complaint, and therefore the court should not consider

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those aspect of plaintiffs' motion. Opp'n at 1, 7, 11, 12, ECF No. 136. When a claim is first raised in the moving papers opposing summary judgment, it should in fact not be considered. See Demarest v. Ocwen Loan Servicing, LLC, 481 F. App'x 352, 353 (9th Cir. 2012); 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). A district court should not consider such claims because "the complaint did not provide fair notice" of them. Gonzalez v. City of Fed. Way, 299 F. App'x 708, 710 (9th Cir. 2008). This rule is not a rigid bar against considering claims or arguments raised in opposing summary judgment when the complaint does give "fair notice of what the plaintiffs' claim is and the grounds upon which it rests." Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 968-69 (9th Cir. 2006).

Defendants argue the following specific claims and arguments are improperly raised for the time in plaintiffs' motion for summary judgment and opposition and should be disregarded. The court addresses each in turn.

a. Reliance on the 2006 MOU in support of the argument that the Nosoni Creek claim is not time barred. ECF No. 133-1 at 5-7.

The 2006 MOU is not alleged in the Fourth Amended Complaint, or included in the Administrative Record. A plaintiff may not plead new facts in opposition to a summary judgment motion solely to toll the statute of limitations. Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006). The court does not consider the 2006 MOU as a basis for tolling with respect to the Nosoni Creek claim.

b. The assertion that "users of the truck ramp had to possess a permit or other authority by the Forest Service," which would be an NHPA undertaking triggering Section 106, under the Nosoni Creek claim. ECF. No. 133-1 at 7:4-7.

Plaintiffs do not allege a permit or lack thereof for the alleged truck ramp project. Fourth Am. Compl. (FAC) ¶ 53. The court will not consider the issuing of a permit as an undertaking triggering Section 106 because that is not the basis of the NHPA violation alleged in the operative complaint.


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c. The assertion of a violation of the PA by not demarcating or excluding Coonrod Flat from the grazing permit, not monitoring the site, and not consulting with the plaintiffs prior to issuing the grazing permit. ECF No. 133-1 at 9-11.

Plaintiffs allege violations of Section 106. FAC ¶ 63. The PA was drafted to comply with the requirements of Section 106; it is a mechanism and the formal agreement ensuring that the required Section 106 analysis is conducted. AR 171. The court will consider the PA in the context of the Coonrod Flat claim.

d. Any substantive challenge to the Section 106 analysis performed in 2007 for the 2010 permit to Coonrod Flat, which is not pled in the Fourth Amended Complaint. ECF No. 133-1 at 9-11.

While not expressly pled in the Fourth Amended Complaint, the Section 106 analysis is in the Administrative Record and relevant to the question of whether defendant complied with its statutory obligations, a claim for which defendant had fair notice, as it is the basis of the NHPA and NEPA claims. The court will consider the challenge to the Section 106 analysis, while bearing in mind the NHPA and NEPA are procedural statutes, and do not prescribe any substantive outcome.

e. Any claim regarding the sufficiency of notice in constructing the Bike Trail Loop at the Buck Saddle site. ECF No. 133-1 at 11-13.

Plaintiffs plead the USFS "[failed] to disclose potential project impacts to the Winnemem tribe before creating the bike trail," and "[failed] to develop a protection plan or consult with the Winnemem before permitting the bike path." Fourth Am. Compl. ¶¶ 68, 69. The court will consider this claim.

f. Any claim regarding the determination that the "sacred prayer rock" at Buck Saddle is not an archaeological feature. ECF No. 133-1 at 11-13.

No such claim is included in the Fourth Amended Complaint, and the court will not consider any argument referencing any such claim.



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g. Plaintiffs' argument that the USFS has violated the PA by not implementing protection measures in connection with the granting of a parking permit to Jones Valley Resort. ECF No. 133-1 at 13-14.

Plaintiffs plead the "USFS has not completed a Section 106 process as required by the NHPA and Advisory Council regulations to avoid, minimize, or mitigate the adverse effects of the parking lot." Fourth Am. Compl. ¶ 74. Because the PA was entered into to comply with Section 106, and is in the Administrative Record, the court will consider it in this context as well.

h. Plaintiffs' argument that discovery of a midden deposit in January 2010 at Antler's Bridge, which led to the issuance of the CalTrans ARPA permit in October 2010, was a "late discovery" that required a Section 106 evaluation under the NHPA. ECF No. 133-1 at 14-15.

The Fourth Amended Complaint pleads only an ARPA and APA claim, not an NHPA claim. FAC ¶ 82. The court will not consider an NHPA claim with respect to Antler's Bridge.

2. Motion to Strike Defendants' Declarations and Documents

Plaintiffs move to strike the (1) declaration of Peter Schmidt (Schmidt), an Archaeologist for the Shasta Lake Ranger District for the Shasta-Trinity National Forest, ECF No. 131-2; (2) prior declarations of Kristy Cottini (Cottini), a former District Ranger, and Winfield Henn (Henn), a former Heritage Program Manager/Tribal Relations Program Manager, ECF No. 131-2, Exs. A-E; (3) a memo concluding the "sacred prayer rock" at Buck Saddle was not an archaeological feature, and that "it would be difficult to determine if this sacred prayer rock is a traditional cultural property," AR 443-446; and (4) a letter from Gloria Silverthorne Gomes (Gomes), Chairperson of the United Tribe of Northern California, Inc. dated March 30, 2010, ECF No. 45. Defendant submitted these documents in support of its motion for summary judgment to show there was no truck ramp project at the Nosoni Creek site and no parking lot project at the Rocky Ridge site. ECF No. 131 at 11-12. Plaintiffs argue defendant may not "plug important factual gaps in the record with unsubstantiated statements from former Forest Service officers," Mot. to Strike at 2, ECF No. 134, these documents are an attempt to impermissibly supplement the Administrative Record, and with regard to the Gomes letter, constitute "unauthenticated hearsay." Second Mot. to Strike, ECF No. 140.

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a. Contents of Declarations

In Cottini's sworn declaration, she states that the only project the USFS undertook in the proximity of the Nosoni Creek site was the Nosoni Bridge...

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