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Northwest Indian Cemetery Protective Ass'n v. Peterson

Citation: 17 ELR 20021
No. No. 83-2225, 795 F.2d 688/24 ERC 1775/(9th Cir., 07/22/1986) On reh'g

On rehearing, the court holds that the Forest Service's plans to construct the last six miles of a logging road and to permit timber harvesting in the Blue Creek Unit of the Six Rivers National Forest in California would violate the Indian plaintiffs' First Amendment rights to free exercise of religion, the environmental impact statements (EISs) for the projects inadequately address water quality impacts, and the projects would violate the state's water quality standards for turbidity. The court first holds that the proposed road and timber harvesting would violate the Indians' rights to free exercise of their religion. The record amply supports the district court's finding that the projects would seriously interfere with the Indians' use of the pristine environment of the "high country" for ceremonies that are central to their religious practices. Moreover, the record indicates that logging and the construction of the logging road would be completely inconsistent with the Indians' religious practices. In addition, a governmental activity need not actually penalize religious beliefs or practices to be invalid under the Free Exercise Clause. The court next holds that the district court's permanent injunction does not require the Forest Service to maintain the high country areas as a religious preserve for a single group in violation of the Establishment Clause. The Forest Service is enjoined only from constructing logging roads and from engaging in commercial timber harvesting in the area, and remains free to administer the high country for all other designated purposes. The court holds that the government has not demonstrated a compelling interest to justify its infringement on the Indians' free exercise rights. The government's argument that Congress granted it broad discretion to manage the public lands is inapposite, since the issues are constitutional rather than statutory.

The court next holds that the EISs prepared in connection with the proposed road and timber harvesting inadequately discuss the water quality impacts of the projects. The district court's conclusions that the EISs failed to discuss the risks of large increases in sediment loads from landslides or to adequately discuss cumulative effects and mitigation measures are not clearly erroneous. The court holds that neither the road construction nor the timber harvest plan meets California water quality standards set out in the state's plan enacted pursuant to § 208 of the Federal Water Pollution Control Act. The state standards were not superseded by the state's and the Environmental Protection Agency's acceptance of the Forest Service's Best Management Practices (BMPs). The BMPs are merely a means to achieve the state standards, and adherence to them does not automatically ensure that these standards are met. In a note, the court vacates that part of the district court's injunction requiring the Forest Service to fulfill its trust responsibilities by completing studies of the effects of the proposed logging on the supply of anadromous fish on an Indian reservation, since the affected tribe is not a party.

Finally, the court holds that the issue of whether the Forest Service was required under the National Environmental Policy Act and the Wilderness Act to evaluate the impact of the proposed actions on the wilderness potential of the Blue Creek Unit together with adjacent roadless areas was mooted by enactment of the California Wilderness Act in 1984.

A dissent would hold that the district court inappropriately enjoined the development of public lands on free exercise grounds. Three of the potential adverse effects (logging, mining, and recreational use) do not support issuance of an injunction, and two other adverse effects (road construction and Forest Service activities) do not pose a serious threat to the Indian's free exercise rights. Moreover, the government's interest in putting public lands to productive use is substantial.

[The court's previous decision appears at 15 ELR 20682. The district court's decision appears at 13 ELR 20793.]

Counsel for Defendants-Appellants
Robert Hamblin, Ass't U.S. Attorney
450 Golden Gate Ave., San Francisco CA 94102
(415) 556-1126

Jacques B. Gelin, Robert Klarquist
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2762

Counsel for Plaintiffs-Appellees
Edna Waltz, Deputy Attorney General
Department of Justice
1515 K St., Suite 511, Sacramento CA 95814
(916) 324-5437

Michael R. Sherwood
Sierra Club Legal Defense Fund, Inc.
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100

Before Duniway and Beezer, JJ.