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Wilson v. Block

ELR Citation: 13 ELR 20861
Nos. Nos. 81-1905 et al., 708 F.2d 735/19 ERC 1201/(D.C. Cir., 05/20/1983)

The court sustains United States Forest Service (USFS) plans for development of a ski area in the San Francisco Peaks of Arizona over challenges based on Indian religious freedom, the Endangered Species Act (ESA), the Wilderness Act, the National Historic Preservation Act (NHPA), and the USFS organic act. The Peaks have religious significance to the Hopi and Navajo Tribes. However, the court rules that allowing a ski development will not violate the First Amendment free exercise rights of the Indians. The burden the development will place on plaintiffs' religious beliefs will be indirect, and will neither deprive plaintiffs of a governmental benefit because of their beliefs nor destroy an indispensable aspect of their religious practice. The American Indian Religious Freedom Act only requires agencies to consider and avoid unnecessary interference with native religions, but does not give religions overriding importance in agency decisionmaking.

The court next rules that at the time of the suit, USFS had fully complied with theESA. A rare endemic plant, the San Francisco Peaks groundsel, was once proposed for listing but was neither proposed nor listed at the time of the suit. Plaintiffs claim that §7 of the ESA protects all endangered species, even those unlisted. The court holds that the legislative history of the ESA suggests that §7 protects only proposed or listed species. However, because the groundsel has recently been reproposed for listing, USFS will have to consult with the Secretary of the Interior pursuant to the ESA before implementing its plans.

The court rules that the plans do not violate the Wilderness Act. Although the ski area now is sparsely developed and adjoins land recommended for inclusion in the Wilderness System, the wilderness Act would only restrict development if the area had been designated primitive.

The court rules that USFS has complied with the NHPA. Though the agency only surveyed 35 percent of the land for historic sites, such a sampling satisfies the NHPA absent stronger evidence that historic sites are liley to be present. Although the plan will affect the view from a neighboring property listed under the NHPA, the plan will not affect the aspects of the property that qualified it for listing. And the Service's finding that the Peaks themselves were not eligible for listing and its decision not to ask the Secretary of the Interior for a determination were within the agency's discretion.

Finally, the court rules that USFS has statutory authority to grant a revocable permit to the ski concessionaire to use 753 acres for ski runs. This authority stems from the Service's Organic Act of 1897 and has not been revoked expressly or implicitly since. The permit at issue is revocable even though USFS regulations require that the Service have a rational basis for revocation.

Counsel for Appellants
John Paul Kennedy, Richard M. Hymas
Boyden, Kennedy & Romney
1000 Kennedy Bldg., 10 E. S. Temple St., Salt Lake City UT 84133-1179
(801) 521-0800

David B. Lee
Jones, Waldo, Holbrook & McDonough
Suite 700, 919 19th St. NW, Washington DC 20006
(202) 296-5950

Charles R. Work, John A. Hodges, Robert A. Warden
McDermott, Will & Emery
1850 K St. NW, Washington DC 20006
(202) 887-8000

Douglas J. Wall, Robert W. Warden
Mangum, Wall, Stoops & Warden
P.O. Box 10, Flagstaff AZ 86002
(602) 774-6664

John A. McKinnon, Elizabeth S. Bernstein
D.N.A. Peoples Legal Services, Inc.
P.O. Box 765, Tuba City AZ 86045
(602) 283-5265

Counsel for Appellees
Jacques B. Gelin, Patricia J. Beneke, Robert L. Klarquist, Robert D. Clark
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2762; 633-2855

Richard McCune Shannon, Stephen P. Kling
O'Connor, Cavanaugh, Anderson, Westover, Killingsworth & Beshears
Suite, 1800, 3003 N. Central Ave., Phoenix AZ 85012
(602) 263-3811

Counsel for Amici Curiae
Ellen W. Leitzer
516 Girard Blvd. SE, Albuquerque NM 87106
(505) 268-0578

Before TAMM and GINSBURG, Circuit Judges, and LUMBARD,* Senior Circuit Judge, United States Court of Appeals for the Second Circuit.