U.S. Forest Service’s Motion to Dismiss NEPA Challenge Denied

August 29th, 2012

By: Thomas Law Group



In Caleen Sisk Franco v. United States Department of the Interior (2012) 2012 U.S. Dist. LEXIS 105316, Plaintiffs challenged the U.S. Forest Service’s (Service) conduct on various religious and cultural sites around the McCloud River.  The Service responded with a motion to dismiss Plaintiffs’ complaint.  The District Court for the Eastern District of California granted the Service’s motion in part and denied in part.

The McCloud River area in Shasta County is home to the Winnemem Wintu Tribe.  Plaintiffs, who are members of the tribe, argued that the Service’s conduct in the McCloud River area, which included construction of a truck ramp, bike trail and ramp, and the opening of other ceremonial areas to the public for recreational use, violated the Archaeological Resources Protection Act (ARPA), the National Historic Preservation Act (NHPA), and the National Environmental Policy Act (NEPA).  Plaintiffs brought their claims under the Administrative Procedure Act (APA), which allows interested parties to challenge federal agency action.

Plaintiffs’ NEPA claims alleged the Service’s construction of the truck ramp and the bike trail and ramp constituted major federal action that had adverse effects on the environment, and therefore an environmental impact statement (EIS) should have been prepared prior to construction.  The Service sought to dismiss the truck ramp claim arguing that no such project exists, and the bike trail and ramp claim averring they complied with NEPA.  The court held both NEPA claims were sufficient at the pleading stage and therefore denied the Service’s motion to dismiss.

Plaintiffs’ ARPA claims accused the Service of failing to prevent incidental harm to archaeological resources at several important sites.  Under ARPA, no person can remove, excavate, or damage an archaeological resource on public or Indian lands, unless that person has a permit showing the activity to be within the public interest of furthering archaeological knowledge.  However, a permit is not required for an activity on public lands conducted under other permits or authorization that is exclusively for purposes other than to excavate archaeological resources.  Here, the court found that the alleged degradation of archaeological resources was not intentional, but rather an incidental result of an activity conducted for an authorized project with no archaeological purpose.    The court hence dismissed all of Plaintiffs’ ARPA claims without leave to amend.

Plaintiffs next alleged that, since the Service was working on “historic properties,” it had an obligation under the NHPA to create protection plans on a site by site basis; however it failed to do so.  To uphold their NHPA claim, the court explained that Plaintiffs must show the Service “failed to take a discrete agency action that it is required to take.”  Plaintiffs’ claims addressed seven sites specifically.  The court dismissed the Service’s motion for five of the sites, concluding Plaintiffs had adequately and definitely stated claims that the Service could respond to.

Plaintiffs’ also sought declaratory relief against the Service regarding their rights to an Indian cemetery, requesting the court bar non-tribe members access, and declare the property as “rightfully theirs.”  Plaintiffs premised their claim on APA’s waiver of sovereign immunity, however, the court found the APA’s waiver inapplicable.  The court held it lacked jurisdiction to hear this claim, and dismissed Plaintiffs’ request for declaratory relief with prejudice.

Written By: Tina Thomas, Amy Higuera and Holly McMannes (law clerk)
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