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Northwest Indian Cemetery Protective Ass'n v. Peterson

ELR Citation: 13 ELR 20793
Nos. Nos. C-82-4049 SAW, -5943 SAW, 565 F. Supp. 586/19 ERC 2115/(N.D. Cal., 05/24/1983)

The court permanently enjoins the construction of a six-mile road and the implementation of a timber harvest plan in the Blue Creek Roadless Area of the Six Rivers National Forest for violations of the First Amendment, the National Environmental Policy Act (NEPA), the Wilderness Act, the Federal Water Pollution Control Act (FWPCA), and Indian water and fishing rights.

The court holds that the construction of the last six miles of a planned road through the Siskiyou Mountains would violate the northwest California Indians' right to the free exercise of their religion because they have traditionally used the area for specific religious ceremonies and preservation of the pristine character of the area is central to their religion. The court rules that defendants have failed to show paramount government interests that justify infringement on the Indians' First Amendment freedom of religion right and rejects the defendants' assertion that the injunction will result in a government-managed religious shrine in violation of the First Amendment establishment clause. However, the court rules that defendants did comply with the American Indian Religious Freedom Act of 1978 by taking steps to lessen the impact of the construction on the Indians' religious practices.

Next, the court holds that the final and draft environmental impact statements (EISs) on the proposed road construction adequately discuss the impacts on geologic and soil stability and Indian cultural resources, adequately discuss alternatives, and incorporate new findings on Indian cultural resources negating the need for a supplemental EIS. But the court holds that the EISs inadequately disclose the impact of the construction on water quality, fail to disclose the cumulative impact on water quality of the construction and implementation of the timber harvest plan, and fail to adequately identify measures for the mitigation of water quality impacts. The court rules that the draft and final EISs on the timber harvest plan contain an adequate cost-benefit analysis and do not require a supplemental EIS.However, the final EIS inadequately discusses water quality impact mitigation measures and violates NEPA and §3 of the Wilderness Act by failing to consider the suitability of the Blue Creek area in conjunction with adjacent roadless areas as a potential single wilderness area. The court orders the Forest Service to supplement the EISs where it has found them inadequate.

The court holds that defendants complied with §106 of the National Historic Preservation Act, rejecting plaintiffs' contention that modifications in the timber harvest plan constituted an "undertaking" under the Act. But it holds that neither the construction nor timber harvest proposals meet the state's water quality standards for turbidity and suspended sediment load in violation of the FWPCA.The court rules that the adverse impact the proposals would have on water quality and fish habitat violate the Indians' reserved water and fishing rights and constitute a breach of defendants' duty, as trustee for the Indians, to protect those rights. The court rules that the violations of constitutional, statutory, and Indian law also result in violations of the Administrative Procedure Act. The court finds no violations of the Multiple-Use Sustained-Yield Act or the National Forest Management Act of 1976.

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

Marilyn B. Miles, Michael S. Pfeffer, David J. Rapport
California Indian Legal Services
P.O. Box 1228, 324 F St., Eureka CA 95501
(707) 443-8397

Edna Walz, Deputy Attorney General
1515 K St., Suite 511, Sacramento CA 95814
(916) 324-5366

Counsel for Defendants
Rodney B. Hamblin, Ass't U.S. Attorney
16th Floor, Fed. Bldg., 450 Golden Gate Ave., San Francisco CA 94102
(415) 556-5131