1 malena pinkham, wsba# 38744 · with telephonic oral argument . march 19, 2015 . 1:00 p.m. case...

UMATILLA TRIBES’ MOTION FOR SUMMARY JUDGMENT - 1

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Malena Pinkham, WSBA# 38744 [email protected] Joseph Pitt, OSB# 081134, appearing Pro Hac Vice [email protected] Office of Legal Counsel Confederated Tribes of the Umatilla Indian Reservation 46411 Timine Way Pendleton, OR 97801 TEL and FAX (541) 429-7400 Attorneys for Intervenor-Plaintiff

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION, Plaintiff, CONFEDERATED TRIBES OF THE UMATILLA INDIAN RESERVATION, a federally recognized Indian Tribe, Intervenor-plaintiff, vs.

UNITED STATES FISH AND WILDLIFE SERVICE; ROBYN THORSON, Pacific Regional Director, U.S. Fish and Wildlife Service; CHARLES STENVALL, Manager, Mid-Columbia National Wildlife Refuge Complex; LARRY KLIMEK, Manager, Hanford Reach National Monument, Defendants.

)))))))))))))))))))))) ) ) ) ) ) ) ) )

No. 14-CV-03052 UMATILLA TRIBES’ MOTION FOR SUMMARY JUDGMENT With Telephonic Oral Argument March 19, 2015 1:00 p.m.

Case 1:14-cv-03052-TOR Document 49 Filed 12/19/14


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I. Introduction

The Confederated Tribes of the Umatilla Indian Reservation’s (“Umatilla

Tribes”) complaint seeks a judgment that (1) the United States Fish and Wildlife

Service (“USFWS”) decision approving an undertaking consisting of a multi-year

program of public wildflower tours within the Lalíik Traditional Cultural

Property (“TCP”) was arbitrary and capricious pursuant to the Administrative

Procedure Act (“APA”) and (2) that the USFWS did not meaningfully consult

with the Umatilla Tribes regarding the expansion of the scope of the undertaking

as required by the National Historic Preservation Act (“NHPA”).

II. Motion

The Umatilla Tribes hereby moves for summary judgment under Rule

56(a) of the Federal Rules of Civil Procedure and Local Rules 7.1 and 56.1 as to

all issues raised by the pleadings. There are no genuine material issues of fact,

and, based upon the Administrative Record and Supplemental Administrative

Record, the Umatilla Tribes are entitled to judgment as a matter of law.

III. Statement of Facts

As required by Local Rule 56.1, the specific facts in support of this motion

are set forth in a separate Statement of Undisputed Material Facts.

IV. Standard of Review under the APA



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Agency actions are reviewed for consistency with the Administrative

Procedure Act (“APA”), 5 U.S.C. § 706. Under the APA, agency actions must be

set aside if they are “arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with the law.” 5 U.S.C. § 706(2)(A). The purpose of this review is

“to ensure that the [agency] made no ‘clear error of judgment’ that would render

its action ‘arbitrary and capricious.’” The Lands Council v. McNair, 537 F.3d

981, 993 (9th Cir. 2008), citing Marsh v. Or. Natural Res. Council, 490 U.S. 360,

378 (1989). The reviewing court should not substitute its judgment for that of the

agency, but must reverse decisions where an agency “relied on factors Congress

did not intend it to consider, entirely failed to address an important aspect of the

problem, or offered an explanation that runs counter to the evidence before the

agency, or is so implausible that it could not be ascribed to a difference in view or

the product of agency expertise.” League of Wilderness Defenders-Blue

Mountains Biodiversity Project v. U.S. Forest Service, 689 F.3d 1060, 1068 (9th

Cir. 2012); see also Pac. Coast Fed’n of Fisherman’s Ass’ns v. Nat’l Marine

Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001) (the court must ask “whether

the agency considered all the relevant factors and articulated a rational connection

between the facts found and the choices made”).

V. National Historic Preservation Act

In enacting the NHPA, Congress declared that “historic properties

significant to the Nation’s heritage are being lost or substantially altered,” and

that “the preservation of this irreplaceable heritage is in the public interest.” 16

U.S.C. § 470. Consistent with this intent, “[t]he NHPA involves a series of

measures designed to encourage preservation of sites and structures of historic,



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architectural, or cultural significance.” Pit River Tribe v. United States Forest

Service, 469 F.3d 768, 787 (9th Cir. 2006), citing San Carlos Apache Tribe v.

United States, 417 F.3d 1091, 1093-94 (9th Cir. 2005).

Among the historic properties the NHPA is designed to protect are

“[p]roperties of traditional religious and cultural importance to an Indian tribe or

Native Hawaiian organization,” which “may be determined to be eligible for

inclusion on the National Register.” 16 U.S.C. § 470a(d)(6)(A). This includes

Traditional Cultural Properties, which National Register Bulletin 38 defines as

places that are “eligible for inclusion in the National Register because of [their]

association with cultural practices or beliefs of a living community that (a) are

rooted in the community’s history, and (b) are important in maintaining the

continuing cultural identity of the community.” AR000135.

The NHPA Section 106 process requires federal agencies to consider the

impact of its actions on TCPs. It mandates that federal agencies, “prior to the

approval of the expenditure of any Federal funds on [an] undertaking or prior to

the issuance of any license, as the case may be, take into account the effect of the

undertaking on any district, site, building, structure, or object that is included in

or eligible for inclusion in the National Register.” 16 U.S.C. § 470f. The Section

106 process is outlined in 36 C.F.R. Part 800, Subpart B. If an agency finds that

historic properties may be affected by a proposed undertaking, it “shall notify all

consulting parties, including Indian tribes or Native Hawaiian organizations,

invite their views on the effects and assess adverse effects, if any, in accordance

with [36 C.F.R.] § 800.5.” 36 C.F.R. § 800.4(d)(2).

In assessing adverse effects, an agency must apply the criteria of adverse

effect in consultation with the State Historic Preservation Officer (“SHPO”) or

Tribal Historic Preservation Officer (“THPO”), as appropriate, “and any Indian



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tribe . . . that attaches religious and cultural significance to the identified historic

properties.” 36 C.F.R. §§ 800.5(a). The consultation process must provide any

affected Indian tribe “a reasonable opportunity to identify its concerns about

historic properties, advise on the identification and evaluation of historic

properties, including those of traditional religious and cultural importance,

articulate its views of the undertaking’s effect on such properties, and participate

in the resolution of adverse effects.” 36 C.F.R. § 800.2(c)(2)(ii)(A). It must also

be “conducted in a manner sensitive to the concerns and needs of the Indian

tribe.” 36 C.F.R. § 800.2(c)(2)(ii)(C).

36 C.F.R. § 800.5 describes how agencies are to apply the “criteria of

adverse effect.” Pursuant to 36 C.F.R. § 800.5(a)(1), “[a]n adverse effect is found

when an undertaking may alter, directly or indirectly, any of the characteristics of

a historic property that qualify the property for inclusion in the National Register

in a manner that would diminish the integrity of the property’s location, design,

setting, materials, workmanship, feeling, or association. Consideration shall be

given to all qualifying characteristics of a historic property.” 36 C.F.R. §

800.5(a)(1). Further, “[a]dverse effects may include reasonably foreseeable

effects caused by the undertaking that may occur later in time, be farther removed

in distance or be cumulative.” 36 C.F.R. §800.5(a)(1). The NHPA regulations

provide guidance to agencies on what types of effects are considered adverse,

including “[c]hange in the character of the property’s use or of physical features

within the property’s setting that contribute to its historic significance” and

“[i]ntroduction of visual, atmospheric or audible elements that diminish the

integrity of the property’s significant historic features.” 36 C.F.R. §

800.5(a)(2)(iv)-(v).



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If, after applying the criteria of adverse effect, the agency “proposes a

finding of no adverse effect, the agency official shall notify all consulting parties

of the finding.” 36 C.F.R. § 800.5(c). If consulting parties disagree with that

finding in writing, an agency must “either consult with the party to resolve the

disagreement, or request the [ACHP] to review the finding.” 36 C.F.R. §

800.5(c)(2)(i). Additionally, an agency must document a finding of no adverse

effect pursuant to the standards set forth in 36 C.F.R. § 800.11(e). This

documentation must include “[a] description of the undertaking’s effects on

historic properties” and “[a]n explanation of why the criteria of adverse effect

were found applicable or inapplicable, including any conditions or future actions

to avoid, minimize, or mitigate adverse effects.” 36 C.F.R. § 800.11(e)(4)-(5).

Additionally, [i]f the agency official will not conduct the undertaking as proposed

in the finding, the agency official shall reopen consultation under [36 C.F.R. §

800.5(a)].” 36 C.F.R. § 800.5(d)(1). If an agency does find an adverse effect, it

does not necessarily preclude the undertaking from being carried out; rather, it

requires an agency to consult further with the consulting parties to resolve the

adverse effects pursuant to 36 C.F.R. § 800.6. 36 C.F.R. § 800.5(d)(2).

VI. Issues Presented

1. Whether the USFWS’ decision that public wildflower tours within the boundary of the Lalíik TCP will not cause an adverse effect to the TCP pursuant to the NHPA was an arbitrary and capricious agency action under the APA.

2. Whether the USFWS met its consultation obligations under the NHPA when it expanded the scope of its proposed undertaking without engaging in additional consultation with affected tribes.



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VII. Argument

1. The USFWS’ decision that conducting public wildflower tours within the Lalíik TCP will not cause an adverse effect to the TCP pursuant to the NHPA was arbitrary and capricious agency action within the meaning of the APA.

A. In failing to consider that “transitory events” can constitute adverse effects to a TCP, the USFWS failed to address an important aspect of Section 106 review, in violation of the APA.

In its Section 106 Cultural Resource Compliance Report, the USFWS

relied upon its perspective of wildflower tours as a “transitory event” and a

“fleeting intrusion” to justify a finding of no adverse effect, comparing the tours

to “a jet and its contrail high over a wilderness area.” AR002076. The report

further states that a wildflower tour is a “minimum impact activity designed to

instill appreciation of the place and its natural resources.” Id. Additionally, it

states that “the undertaking does not alter the physical or tangible characteristics

of the Lalíik TCP.” AR002077.

The conclusion the USFWS draws from this statement is that the tours

“will not diminish the integrity of setting, feeling, or association, of the Lalíik

TCP.” Id. The necessary implication here is that USFWS believes that for an

undertaking to diminish the integrity of setting, feeling, and association of the

Lalíik TCP, a more permanent physical or “tangible” impact is required. The

USFWS fails to adequately explain why repeated “transitory” intrusions into the

Lalíik TCP cannot diminish the integrity of its setting, feeling, and association.

Instead, it relies on an ill-fitting comparison to jet contrails to minimize the



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Umatilla Tribes and other affected tribes position that loosening access

restrictions will adversely affect this sacred site. AR002076.

This oversight is particularly glaring in light of the specific reasons that the

Lalíik TCP eligible for listing on the National Register. The Lalíik TCP is

eligible for listing on the National Register “because of its local significance as

defined by [National Register] Criterion A and B.” AR000460. With respect to

Criterion A, Lalíik qualifies as a TCP “because of the longstanding role of Lalíik

as a spiritual location of primary importance to groups of American Indians

within the region.” Id. With respect to Criterion B, Lalíik qualifies as a TCP due

to its “association with Smohalla, an important 19th century prophet” who “had a

vision on Lalíik about 1850, which later inspired him to revitalize the Washani

religion.” Id. Further, in finding Lalíik eligible for listing on the National

Register, the National Park Service (“NPS”) found that “[d]espite restricted

access, Lalíik’s significance has not diminished as a place that is central to the

practice and survival of Washani cultural and spiritual beliefs” and “it continues

to figure prominently not only as a place recognized to have extreme cultural and

sacred significance, but also as a place where practitioners can go to continue and

perpetuate their traditional cultural beliefs.” AR000461. The NPS further cites

the “integrity of condition” and “integrity of association with tribal cultural

beliefs and practices” as underpinnings of the TCP’s local significance supporting

National Register eligibility. Id. Lalíik is a NHPA-eligible TCP principally

because of its significance in and centrality to the cultural and spiritual beliefs of

local Indian tribes, including the Umatilla Tribes. As such, when the USFWS

analyzes whether an undertaking will affect the “integrity of setting, feeling, or

association” of Lalíik, it must necessarily do so based on the affected tribes’

perspective.



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The USFWS Section 106 Compliance Report offers no explanation of why

it would require a change to the physical or tangible characteristics of Lalíik in

order to alter its integrity of setting, feeling, and association to affected tribes.

The NHPA regulations state that an adverse effect can consist of a “[c]hange in

the character of a property’s use or physical features within the property’s setting

that contribute to its historic significance.” 36 C.F.R. §800.5(a)(2)(iv). The use

of the disjunctive clearly indicates that a change in a property’s use does not need

to amount to an alteration of physical features in order to constitute an adverse

effect. The lack of an adequate explanation as to why a “fleeting” intrusion,

which nevertheless changes the character of the TCP’s use, cannot constitute an

adverse effect, the USFWS has failed to consider a key relevant factor it is

required to consider in the Section 106 process and its decision therefore violates

the APA. Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto Ins. Co.,

463 U.S. 29, 43 (1983) (“we must ‘consider whether the decision was based on a

consideration of the relevant factors’”), citing SEC v. Chenery Corp., 332 U.S.

194, 196 (1947). The USFWS cites no authority in the Section 106 Compliance

Report to indicate transient impacts cannot affect the character of a TCP and

makes no attempt to analyze the change of the character of the property’s use

under 36 C.F.R. § 800.5(a)(2)(iv). AR002064-AR002087. Under these

circumstances, the Court should not attempt to supply such reasoning for the

agency. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (The reviewing court should

not attempt itself to make up for such deficiencies: ‘We may not supply a

reasoned basis for the agency’s action that the agency itself has not given’), citing

SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). As such, this matter should be

remanded to the USFWS such that it can attempt to supply such reasoning.



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The USFWS’ own report states that the “NRHP document . . . and tribal

consultation (Appendix A) identify the integrity of Lalíik’s feeling, setting, and

association.” AR002076. Nevertheless, the Section 106 Compliance Report

discounts the consulting tribes’ view of the effect of the undertaking on Lalíik’s

feeling, setting, and association, and substitutes its own view of the tours as a

fleeting intrusion similar to a jet passing overhead. Id. Without sufficient

analysis establishing that “transitory” events cannot constitute an adverse effect

to the integrity of Lalíik’s setting, feeling and association from the perspective of

the tribes to whom Lalíik is sacred, the USFWS’ finding of no adverse effect is

arbitrary and capricious within the meaning of the APA.

B. The record shows that the USFWS initially believed the single day of wildflower tours was an adverse effect to the TCP, but reversed course without any meaningful discussion in the record.

The USFWS’ view of the effect of public tours on the Lalíik TCP changed

entirely in the span of roughly two weeks in 2012, with absolutely no explanation

in the record to support such a drastic shift. First, in 2011, the USFWS’ Proposed

Tour of Shrub Steppe Habitat would have occurred within the HRNM, but would

have been conducted outside the Lalíik TCP boundary. AR001929. The tour was

cancelled due to the indirect adverse effects that would occur to Lalíik that were

identified during Section 106 consultation with affected tribes, including the

Umatilla Tribes. AR001931 (“tribal consultation revealed that the undertaking

cannot proceed without affecting the Lalíik (Rattlesnake Mountain) National

Register site and traditional cultural property”).

Then, in the months leading up to the USFWS’ initial April 26, 2012

finding of no adverse effect for the proposed undertaking of two public



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wildflower tours on a single day (AR No. 121), the Administrative Record

includes several documents in which USFWS staff discuss the Section 106

process for the proposed tours. In a March 18, 2012 briefing paper drafted by

Anan Raymond, Branch Chief of Cultural Resources for Fish and Wildlife

Services, Region 1, for Robyn Thorson, USFWS Pacific Regional Director, Mr.

Raymond states that “[t]he pristine and isolated condition of Lalíik, along with its

restricted access are essential characteristics of its sacredness and National

Register status.” AR001983 (emphasis in original). Further, Mr. Raymond stated

that “[p]ublic access, tours, and elk hunting at Rattlesnake Mountain constitute

undertakings under Section 106 of the National Historic Preservation Act and

must consider potential effects to Lalíik and other cultural sites.” AR001983. An

additional briefing paper, also dated March 18, 2012 and drafted by Anan

Raymond in preparation for a meeting between Robyn Thorson and the Umatilla

Tribes, contained the following recommendation: “An NHPA adverse effect

determination and MOA may appear to be a disproportionately large and long

bureaucratic exercise for non-ground-disturbing and temporary activities such as

controlled public tours, but it is indicated nevertheless.” AR001984 (emphasis

added). Mr. Raymond then listed several recommended actions the USFWS

could pursue to mitigate the adverse effects of public access to Lalíik. Id. A third

communication from Mr. Raymond, an email to Larry Klimek and Charles

Stenvall dated March 27, 2012, states that “the NHPA regs (sic) require that FWS

go through the adverse effect consultation process and produce an MOA with the

Tribes. This will take months. Given that, I don’t see FWS going forward with

the tours this spring.” AR001985 (emphasis added).

Mr. Raymond has “over 30 years of experience exercising and

implementing Section 106 of the NHPA and its regulations 36CFR800 (sic), for



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hundreds of Agency undertakings that had the potential to effect historic

properties. This experience includes hundreds of consultations and discussions

with Indian Tribes in the context of Section 106 and protection of historic

properties.” ECF No. 21 at 2. In several communications in March 2012, Mr.

Raymond indicated that the proposed wildflower tours were an adverse effect to

the Lalíik TCP and recommended a Memorandum of Agreement be entered into

with affected tribes to resolve the adverse effect. Then, on April 12, 2012, a

Tribal Working Group meeting was held, which was attended by Mr. Raymond,

as well as representatives of the affected tribes. AR001990. Regarding the

wildflower tour, the USFWS meeting notes indicate that “FWS will go no

adverse effect.” Id. The record contains not a single document discussing this

change in direction. On March 27, 2012, the USFWS staff person responsible for

preparing the Section 106 Compliance Report believed the single tour day

constituted an adverse effect that required resolution through a Memorandum of

Agreement with the affected tribes. AR001985. On April 12, 2012, a little over

two weeks later, and with no discussion in the record to support the change, the

same USFWS staff person, who has over 30 years of experience with the Section

106 process, indicated to the affected tribes that the tours would have no adverse

effect. AR001990. In an later email to Larry Klimek and Charles Stenvall, Mr.

Raymond later went so far as to predict that the ACHP, which is tasked with and

has the expertise to review such findings, would find the USFWS finding of no

adverse effect lacking. AR001859 (“I predict that the ACHP will respond by

stating our determination of ‘no adverse effect’ is faulty and we should conclude

‘adverse effect’ and negotiate a MOA with the parties to resolve adverse effect”).

This sequence of events demonstrates clear deficiencies in the decision-

making process and points to the likely influence of external factors on the



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outcome of the Section 106 process. The same USFWS staff person, facing the

same type of action, with the same type of concerns raised by consulting tribes,

reached opposite conclusions with respect to the 2011 Shrub Steppe tours and the

2012 proposed wildflower tours. While there is no requirement that “all agency

change be subjected to more searching review . . . an agency must ordinarily

display awareness that it is changing position.” F.C.C. v. Fox Television Stations,

Inc, 556 U.S. 502, 515 (2009) (emphasis in original). Nothing in the USFWS’

record of decision indicates such awareness or provides an explanation for the

change in position. Without acknowledging that its 2012 finding of no adverse

effect directly contradicts the previous 2011 finding and represents a change in

policy, the USFWS’ 2012 finding should be set aside as arbitrary and capricious.

C. In failing to consider whether expanding the undertaking from a single tour day to a program of tours would lead to cumulative adverse effects to the TCP, the USFWS failed to address an important aspect of Section 106 review process.

There is no analysis in the final Section 106 Compliance Report regarding

the expansion of the number of proposed wildflower tours in relation to 36 C.F.R.

§ 800.5(a)(2)(iv), which indicates that a “[c]hange in the character of the

property’s use . . . that contribute to its historic significance” can constitute an

adverse effect. AR002064 - AR002087. Even assuming the USFWS was correct

in determining that a single wildflower tour did not change the character of the

property’s use in a manner that constitutes an adverse effect (and again, there is

evidence in the record that USFWS staff believed that even the single tour day

did so), no additional analysis regarding the effect on the character of use was

conducted to reach the same finding with respect to thirty times the number of



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tours. Id. The failure to consider the cumulative effect of sixty tours over five

years, and to instead equate their “transitory,” “fleeting” nature with two tours on

a single day entirely fails to address a key aspect of the Section 106 review

process, specifically, 36 C.F.R. § 800.5(1) (“Adverse effects may include

reasonably foreseeable effects caused by the undertaking that may occur later in

time, be farther removed in distance or be cumulative”). Where restricted access

is absolutely essential to maintaining the characteristics that make Lalíik a

National Register-eligible TCP, failing to consider that sixty tours could

cumulatively have a greater potential to impact the TCP than two tours omits a

key aspect of the Section 106 process and is therefore arbitrary and capricious

under the APA. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (an agency decision is

arbitrary and capricious if it is not based on a consideration of all relevant

factors).

D. The Washington State Historic Preservation Officer and the Advisory Council on Historic Preservation both indicated to the USFWS that the undertaking constitutes an adverse effect on the Lalíik TCP, but the USFWS did not consider their comments.

The Umatilla Tribes and the other affected tribes were not the only

interested parties that indicated to the USFWS that the proposed tours would

adversely affect the Lalíik TCP. First, on April 30, 2012, the Washington SHPO

responded to the April 26, 2012 Section 106 Compliance Report in writing, stating

“[w]e do not concur with your determination of No Adverse Effect. The

documentation and correspondence from the consulted tribal governments states

clearly the undertaking is an Adverse Effect.” AR002004. The Washington

SHPO’s opinion that the tours constitute an adverse effect receives no mention, let



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alone analysis, in the Section 106 Compliance Report for the revised undertaking.

AR002064-AR002087. Second, the ACHP, by letter dated April 9, 2014 indicated

its opinion that the tours constitute an adverse effect on the Lalíik TCP.

AR002439. These letters, both drafted by entities with significant expertise in

applying Section 106 of the NHPA, help to demonstrate that the USFWS’

incorrectly applied the criteria of adverse effect.

The ACHP letter reaffirms that Lalíik is listed on the National Register

“because of its longstanding association with the cosmology and religious and

cultural practices and beliefs of the Indians of the region” and emphasizes that

“[i]ts remoteness, isolation, and limited access are all important characteristics that

contribute to its eligibility . . . and to its integrity of setting, feeling, and

association.” AR002439-AR002440. The ACHP letter also references earlier

correspondence with USFWS regarding several proposed undertakings on Lalíik,

stating that “in a letter dated December 28, 2012, we did provide an advisory

opinion that the historic qualities exhibited by Lalíik and its integrity of setting,

feeling, and association for the tribes may be compromised by the proposed elk

hunts. As a result the ACHP recommended that FWS develop a Programmatic

Agreement (PA) for management of the property to address the elk hunts,

wildflower tours, and whatever other activities may be of concern to the tribes.”

AR002440 (emphasis added). Finally, it states that “we wish to reaffirm our

advice that all such activities proposed for Rattlesnake Mountain be considered as

having the potential to cause an Adverse Effect and be treated under a PA

developed in consultation with the interested tribes, State Historic Preservation

Officer of Washington State (SHPO), and other appropriate consulting parties.

Therefore, before proceeding with additional tours, the FWS should re-engage in

consultation with the interested tribes regarding the wildflower tours and their



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potential to cause effects to the Lalíik TCP and to identify if possible specific

parameters for the activity that will ensure adverse effects will not occur.”

AR002440 (emphasis added).

When the ACHP provides such an opinion within a specified timeframe (a

maximum of 30 days after being asked to review the matter by an agency), the

agency is required to “take into account the [ACHP’s] opinion in reaching a final

decision” and “prepare a summary of the decision that contains the rationale for

the decision and evidence of consideration of the Council’s opinion.” 36 C.F.R. §

800.5(c)(3)(ii)(A)-(B). Here, the ACHP opinion was not provided to the USFWS

within the applicable timeframe, so the USFWS is not required to consider it as

part of the Section 106 process. The USFWS is not, however, foreclosed from

considering it, and given the disagreement between the Umatilla Tribes and the

USFWS regarding the effect of the tours under the NHPA, it is unclear why the

USFWS would actively avoid advice from an entity that was established by

Congress specifically for the purpose of providing such advice.

Instead, the Administrative Record demonstrates that the USFWS was

committed to avoiding taking the ACHP’s opinion into account. The USFWS

provided the Section 106 Compliance Report to the ACHP on November 16,

2012. AR002114. The ACHP did not respond within the 30 day timeframe

allocated by 36 C.F.R. § 800.5(c)(3)(i), but stated by email on January 2, 2013

that a response on the tours would be provided to USFWS nevertheless.

AR002127. A January 1, 2013 internal email between USFWS staff indicates

that they preferred not to receive a response from the ACHP. AR002130 (“I told

[the ACHP] that we would rather not get a follow-up letter or comment on the

wildflower tour as he suggested he would do in his email yesterday. He said he

understood and will tell his management. So, hopefully they will remain silent on



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the wildflower tour”). This demonstrates that the USFWS not only failed to

consider important aspects of the NHPA regulations when it determined the

wildflower tours would have no adverse effect on the Lalíik TCP, it actively

avoided receiving advice from another federal agency that possesses greater

expertise on the implementation of the Section 106 regulations.

Additional emails between USFWS staff during this time period display an

increasingly dismissive attitude towards tribal cultural resources concerns. For

instance, in a January 16, 2013 email, Charles Stenvall writes, in reference to the

affected tribes, “they will always have more people, time, and interest in the

cultural resource side of things than we will ever have. Our interest in working

with the Tribes is really related to wildlife and land management.” AR002141.

These communications display an apparent disdain for the need to comply with

cultural resources laws and an active avoidance of outside expertise on the

subject. Therefore, while the NHPA regulations may not have required that the

USFWS formally document its consideration of the ACHP’s opinion, its

avoidance of such consideration is simply further indication that it failed to

consider important aspects of its review of the undertaking and therefore reached

an arbitrary and capricious decision within the meaning of the APA.

2. In expanding the scope of the undertaking from a single tour day to a multi-year program of tours without reopening consultation with the Umatilla Tribes, the USFWS failed to comply with the NHPA.

NHPA regulations define consultation as “the process of seeking,

discussing, and considering the views of other participants, and, where feasible,

seeking agreement with them.” 36 C.F.R. § 800.16(f). On February 17, 2012,



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the USFWS invited affected tribes, including the Umatilla Tribes, to formally

review its proposed undertaking of two wildflower tours on a single day within

the Lalíik TCP pursuant to Section 106 of the NHPA. AR002088-AR002097.

The Umatilla Tribes responded on March 14, 2012, indicating that it “has

consistently opposed tours on and around Lalíik because tours would result in

adverse effects to a historic property of religious and cultural significance to the

[Umatilla Tribes] and may also affect the archaeological sites within the ALE

boundary.” AR002098. The Yakama Nation and Nez Perce Tribe also submitted

letters opposing the tours due to the adverse effect they would have on the

integrity of the TCP. AR002102-AR002108.

On April 26, 2012, the USFWS issued its Section 106 Compliance Report

finding that two wildflower tours on a single day within the Lalíik TCP would not

adversely affect the TCP within the meaning of the NHPA. AR No. 121. In

section 5 of the April 2012 Section 106 Compliance Report, the USFWS states

that “consultation included a meeting at the FWS office in Burbank, Washington,

on February 2, 2012 and written/email correspondence from the FWS to the

Tribes on February 17, 2012. Appendix A contains copies of this correspondence

and replies by the Tribes.” AR No. 121 at 5. All of the correspondence from the

Umatilla Tribes and the other affected tribes predates the April 26, 2012 Section

106 Compliance Report. AR No. 121 at 26-46.

In June 2012, the USFWS modified the Section 106 Compliance Report,

expanding the undertaking substantially to a program of tours. AR002037-

AR002038. When the USFWS eventually submitted this modified report to the

ACHP, section 5, regarding tribal consultation, fails to identify any additional

consultation with the Umatilla Tribes or the other affected tribes. AR002068.

Similarly, Appendix A contains the same correspondence from the Tribes, all of



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which predates June 2012, when the tribes were notified of the USFWS’ intent to

expand the scope of the proposed undertaking. AR002088-AR002108.

36 CFR § 800.5(d)(1) discusses agency obligations upon issuing a finding

of no adverse effect. The agency official must maintain a record of the finding

and must implement it in accordance with the finding as documented. 36 C.F.R.

§ 800.5(d)(1). Otherwise, “[i]f the agency official will not conduct the

undertaking as proposed in the finding, the agency official shall reopen

consultation under paragraph (a) of this section.” Id. When the USFWS

transmitted its finding of no adverse effect to affected tribes on April 26, 2012,

the undertaking consisted of a single tour day to occur in 2012. AR001995. In

June 2012, the finding was reissued as a program of tours, to be conducted six

times a year for a period of five years. AR002038. The record contains no

indication that Umatilla Tribes was consulted prior to the USFWS’ issuance of

the modified undertaking in June 2012; rather, the USFWS simply provided the

Umatilla Tribes a modified Section 106 Compliance Report applying identical

analysis to the expanded undertaking and indicated that it would be moving

forward with the broader program of tours.

In arguing that it met its consultation obligations, the USFWS points out

that it made alterations to the undertaking to address concerns raised by the

consulting tribes. ECF No. 21 at 4. Specifically, USFWS staff has stated that “in

response to concerns raised by the Tribes in these consultations, the Service

modified the original tour concept by limiting group size, limiting the area

traversed at the stops, and keeping the group together and under the immediate

control of the FWS tour leader.” ECF No. 21 at 4. (emphasis added). It is

difficult to discern how the USFWS addressed tribal concerns by limiting tour

group size, when it also expanded the overall number of people accessing the



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TCP thirtyfold. This action represents the very definition of meaningless

consultation – feigning responsiveness to tribal concerns while taking action that

runs directly counter to those concerns.

The Umatilla Tribes request this court to grant summary judgment

regarding its claim that the USFWS failed to adequately consult with the Umatilla

Tribes and to order the USFWS to reengage in such consultation prior to

conducting any additional public wildflower tours within the Lalíik TCP.

VIII. Conclusion

The Umatilla Tribes recognize that this Court may not permanently

“foreclose others who want to experience the mountain’s uniqueness from

sharing that space.” ECF Doc. 25 at 22. Rather, the Umatilla Tribes are seeking

recognition that such tours are an undertaking that causes an adverse effect to the

criteria that render the Lalíik TCP eligible for listing on the Nation Register of

Historic Places, and that such adverse effects must be appropriately mitigated.

The Umatilla Tribes also seek to be meaningfully consulted regarding

undertakings that may adversely affect the Lalíik TCP.

This case is distinguishable from Navajo Nation v. United States Forest

Service, 535 F.3d 1058 (9th Cir. 2008), cited by this Court in denying the

Yakama Nation’s Motion for a Temporary Restraining Order. ECF No. 25 at 21-

23. In the 9th Circuit’s en banc decision in the Navajo Nation case, the court

adopted the original panel’s decision regarding the tribal plaintiffs’ NHPA claim.

Navajo Nation, 535 F.3d at 1080. In the prior panel decision, the issue of

whether the agency’s undertaking was an adverse effect under the NHPA was not

addressed, the NHPA claim resolved in that case involved only the adequacy of



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consultation. Navajo Nation v. United States Forest Service, 479 F.3d 1024,

1059-1060 (9th Cir. 2007). The reason that there was no adverse effect claim

involved in the Navajo Nation case is that in considering alternatives regarding

the proposed undertaking, the Forest Service had found that “all of the

alternatives would potentially result in adverse effects to the traditional cultural

values of the [TCP]. The National Historic Preservation Act requires preparation

of a MOA in consultation with the tribes, the Arizona State Historic Preservation

Officer and the Advisory Council on Historic Preservation when adverse effects

are identified.” Exhibit 1, Record of Decision for Arizona Snowbowl Facilities

Improvements Final EIS and Forest Plan Amendment #21 at 28. The Forest

Service, in the Navajo Nation case, complied with the NHPA with regard to

adverse effect analysis and development of a Memorandum of Agreement to put

forth “a required and concerted effort to acknowledge and reduce impacts to the

extent possible and practical.” Id. The Umatilla Tribes are simply seeking to

ensure that USFWS puts forth the same level of effort to mitigate for impacts to

cultural resources in compliance with the NHPA.

Based upon the forgoing and on the rest of the record herein, there is no

genuine issue of material fact and the Umatilla Tribes are entitled as a matter of

law to summary judgment against the United States, and an order holding

unlawful, setting aside, and remanding the USFWS finding of no adverse effect

for further review and meaningful consultation with the Umatilla Tribes

consistent with the NHPA.

DATED this 19th day of December, 2014.

s/ Malena Pinkham MALENA PINKHAM, WSBA# 38744



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CERTIFICATE OF SERVICE

I hereby certify that on the 19th day of December, 2014, I electronically

filed the foregoing with the Clerk of the Court using the CM/ECF System which

will send notification of such filing to the following:

Michael C. Ormsbey United States Attorney Vanessa R. Waldref Assistant United States Attorney Thomas Zeilman Attorney for Plaintiff Yakama Nation and/or I hereby certify that I have mailed this document by United States Postal Service to the following non-CM/ECF participant(s): N/A

s/ Malena Pinkham MALENA PINKHAM, WSBA# 38744


1 malena pinkham, wsba# 38744 · with telephonic oral argument . march 19, 2015 . 1:00 p.m. case...

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