Wyoming Sawmills, Inc. v. U.S. Forest Service

Decision Date06 December 2001
Docket NumberNo. 99-CV-0031-J.,99-CV-0031-J.
Citation179 F.Supp.2d 1279
PartiesWYOMING SAWMILLS, INCORPORATED, A Wyoming Corporation, Plaintiff, v. UNITED STATES FOREST SERVICE; Daniel Glickman, Secretary of Agriculture; Michael P. Dombeck, Chief of the Forest Service; Lyly Laverty, Regional Forester for Region II; Abigail Kimbell, Forest Supervisor for the Big Horn National Forest; Defendants, and Medicine Wheel Coalition on Sacred Sites of North America, Defendant-Intervener.
CourtU.S. District Court — District of Wyoming

William Perry Pendley, William D. Thode, Susan Amanda Koehler, Mountain States Legal Foundation, Denver, CO, for Plaintiff.

Nicholas Vassallo, Assistant U.S. Attorney, Department of Justice, Cheyenne, WY, Albert C. Lin, Department of Justice, Washington, DC, for Defendant.

Andrew W. Baldwin, Baldwin & Crocker, Lander, WY, Jack F. Trope, Albuquerque, NM, for Defendant-Intervener.

ORDER GRANTING THE UNITED STATES FOREST SERVICE'S AND MEDICINE WHEEL COALITION'S MOTION TO DISMISS

ALAN B. JOHNSON, District Judge.

The United States Forest Service ("NFS") and Medicine Wheel Coalition move for this Court to dismiss Wyoming Sawmills' ("Sawmills") complaint for lack of standing or alternatively on the merits.1 The Court, having reviewed carefully the briefs of the parties, the applicable law, all matters of record, and being fully advised, PARTIALLY GRANTS the NFS's motion to dismiss for lack of standing and finds in favor of the NFS on the remaining claims.

BACKGROUND

The Medicine Wheel National Historic Landmark, located within the Big Horn National Forest in north-central Wyoming, is a prehistoric feature consisting of a circular structure of rocks with a diameter of eighty feet, and a large cairn (or rock pile) in the center of the circle, and 28 "spokes" of rocks radiating from the center to the edge of the circle. See Administrative Record ("AR") at 3839. While no Native American Tribe claims to have built the Medicine Wheel or knows when it was constructed, archeological evidence indicates that people have been present in the area for at least 7,500 years, and in the vicinity of the Wheel are numerous tepee rings, trails, and other archeological features and artifacts. See AR at 3839, 3853. The deep traditional historical and cultural value of the Wheel and nearby Medicine Mountain to Native Americans has been documented in various studies, and the Wheel is considered a sacred site by numerous Native American Tribes. See AR at 3839, 3854.

In June 1957, approximately 200 acres in Big Horn National Forest was withdrawn "for the protection and preservation of the archaeological values of the Medicine Wheel and adjacent historic area" from virtually all forms of claims, including mining and mineral claims. See 22 C.F.R. § 4135 (1957); AR at 3853. The Medicine Wheel was designated as a National Historic Landmark in April 1969, with 110 acres included in that designation. See AR at 3853.

In the late 1980s, an increase in the number of visitors to the Medicine Wheel gave rise to concerns about visitor safety, as well as concerns for protecting vegetation and prehistoric features and artifacts. See AR at 3839, 3842. The forest service responded by beginning a process (starting in 1988) to develop a management plan to better protect the Medicine Wheel. See AR at 3842. This process, which has been characterized as "lengthy and often contentious," led to the development in 1991 of a Draft Environmental Impact Statement ("DEIS") setting forth various proposed management alternatives.2 AR at 1-114, 3842. The DEIS preferred alternative involved, inter alia, road construction and improvements to allow unrestricted vehicular access except during ceremonial uses, construction of an expanded parking lot immediately adjacent to Medicine Wheel to accommodate twenty cars and five larger vehicles, and construction of restrooms at the parking lot. See 6-9, 35. When the DEIS was released, the Forest Service received more than 300 comments from the public, many of which were critical of the proposed management and called for greater sensitivity to Native Americans or to recreational and commodity uses. See AR at 3842.

In light of such comments, and in response to the controversy, the Forest Service withdrew the proposal contained in the DEIS and instead began a consultation process with the Wyoming State Historic Preservation Officer and the federal Advisory Council on Historic Preservation ("Advisory Council").3 See AR at 3842; see, e.g., AR at 752-55 (Forest Service remarks indicating "new approach" to managing Medicine Wheel); AR at 774-75 (remarks of the Forest Service official explaining that because of letters, "we realize we were not heading in the right direction so that's why we took the draft EIS and we just set it to the side"). The Big Horn County Commissioners, the Medicine Wheel Coalition for Sacred Sites, the Medicine Wheel Alliance, and the Federal Aviation Administration (which has operated a radar site on Medicine Mountain since 1962) also became "Consulting Parties" in the development of a plan for the short-term management of the site until a long-term plan could be agreed on. See AR at 3842; See also AR at 1424-34.

In 1994, the Consulting Parties signed the Programmatic Agreement ("PA"), which established interim management procedures and contemplated the development of a long-term plan for managing the site. See AR at 2024-36. The Consulting Parties signed that long-term plan, the Historic Preservation Plan for the Medicine Wheel National Historic Landmark and Medicine Mountain ("HPP"), on September 28, 1996. The purpose of the HPP is "to establish a process for integrating the preservation and traditional uses of historic properties with the multiple use mission of the Forest Service, in a manner that gives priority to the protection of the historic properties involved by continuing traditional cultural use consistent with Section 110(f) of the National Historic Preservation Act." AR at 2619. The HPP provides for, inter alia, consultation between the Forest Service and other parties to the HPP for any project proposed within an "area of consultation" surrounding Medicine Wheel. See AR at 2619-30. Such consultation enables the involvement and consideration of means of minimizing and mitigating impacts to historic resources and traditional cultural use. See AR at 2619-20. The HPP also provides for an operating plan involving on-site interpreters, visitor management, and limited motorized access, as well as protection of the traditional cultural use of the site. See AR at 2639-46.

The consultations and agreements culminating in the adoption of the HPP were undertaken within the framework of the Forest Service's obligations under the National Historic Preservation Act ("NHPA") and the Advisory Council's NHPA regulations. The Forest Service's obligations under the NHPA include: (1) the identification, evaluation, and management of historic properties in a way that considers preservation of their historic, archeological, architectural, and cultural values; (2) the consideration of effects of a proposed action on sites included or eligible for inclusion in the National Register of Historic Places, with an opportunity for comment by the Advisory Council, and (3) consultation with other federal, state, and local agencies, and Indian tribes in carrying out historic preservation planning activities. See 16 U.S.C. §§ 470f, 470h-2(a)(2); AR at 2619-20. And the Advisory Council's regulations contemplate the accommodation of historic preservation concerns through consultation between the agency, the State Historic Preservation Officer, and other interested persons, including Indian tribes, from the early stages of planning. See 36 C.F.R. § 800.1; see also id. § 800.5(e)(1) (authorizing invitation of interested persons to participate as consulting parties); id. § 800.13 (regulation indicating that agency's Section 106 responsibilities may be met through a Programmatic Agreement).

The Forest Service's management of the Medicine Wheel through the HPP has also been guided by other laws, including the Antiquities Act of 1906, the Historic Sites Act of 1935, the Archeological and Historic Resources Preservation Act of 1974, the American Indian Religious Freedom Act of 1978, and the Archeological Resources Protection Act of 1979. See AR at 3843. These statutes, inter alia, authorize the setting aside of protection of historic landmarks and structures, see, e.g., 16 U.S.C. §§ 431-433m (Antiquities Act); 16 U.S.C. §§ 461-467 (Historic Sites Act), require the establishment of programs to increase public awareness of the significance of archeological resources on public lands and Indian lands and the need to protect such resources, see, e.g., 16 U.S.C. § 470ii(c) (provision of Archeological Resources Protection Act), and make explicit the policy of the United States to protect the freedom of the Native Americans to exercise traditional religions through "access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites," 42 U.S.C. § 1996 (American Indian Religious Freedom Act). In addition, Executive Order 13,007 requires that federal agencies accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and avoid adversely affecting the physical integrity of such sites. See 61 C.F.R. 26,771-72 (1996).

Wyoming Sawmills' ("Sawmills") complaint focuses on the HPP and the Forest Service's documentation relating to its adoption, including the Environmental Assessment (AR at 2837-89) and the Decision Notice and Finding of No Significant Impact (AR at 3834-36),4 through which the Forest Service approved the HPP and amended (Amendment 12) the existing forest plan.5 See AR at 3834-36. The Complaint also...

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