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Editors --- "The Navajo Nation v US Forest Service, District Court of Arizona, 11 January 2006" [2006] AUIndigLawRpr 31; (2006) 10(2) Australian Indigenous Law Reporter 62

The Navajo Nation VS US Forest Service

United States District Court for the District of Arizona (Rosenblatt J)

408 F.Supp. 2d 866

11 January 2006

Administrative Law — Challenge to Forest Service approval decision — National Environmental Policy Act — Endangered Species Act — National Forest Management Act — Religious Freedom Restoration Act — breach of fiduciary duty arising from trust relationship between United States and Indian tribes.

Facts:

The United States Forest Service administers an area of land in Arizona, ‘The Peaks’ in which recreational pursuits such as skiing have been common since the 1930s. In 1979 The Forest Service approved a decision that 206 acres of land be set aside on The Peaks specifically for skiing and recreational purposes. That decision was challenged by several Indian tribes, but the District of Columbia Court of Appeals upheld the decision in Wilson v Block 228 US App DC 166 (DC Cir 1983)

In September 2002 the Forest Service approved plans by the Arizona Snowbowl Resort Ltd Partnership (ASR), the current owner and operator of the facilities, to extend the existing area within the mandate set out by the original grant of land, and also to upgrade skiing services and commence snowmaking facilities using treated reclaimed water from a nearby township. The original decision was internally reviewed by the Forest Service, and upheld.

The Plaintiffs in this case comprise a number of Native American tribes. On 13 July 2005, they lodged a number of claims pursuant to the Administrative Procedure Act, 5 U.S.C. for judicial review of the approval decision, as well as a separate claim of breach of trust. Substantially, the plaintiffs alleged that in approving the proposed extensions the Forestry Service were acting in contravention of:

(a) The requirements of the National Environmental Policy Act, 42 USC (1969)
(b) The National Historical Preservation Act, 16 USC (1966)
(c) The Endangered Species Act, 16 USC (1973)
(d) The Grand Canyon Enlargement Act, 16 USC (1975)
(e) The National Forest Management Act, 16 USC (1976)
(f) The Religious Freedom Restoration Act, 42 USC (1993)

The plaintiffs also filed a separate claim of breach of trust.

On 12 August 2005 both parties filed cross motions for summary judgment relating to these matters.

Held, denying the plaintiff’s motions for summary judgement, and dismissing the plaintiff’s claims under the Religious Freedom Restoration Act:

1. In reviewing a decision taken under the National Environmental Policy Act (‘NEPA’), the Court is to determine whether a proposing agency has taken a “hard look” at the environmental effects of the proposed action. Since the court is satisfied that a proposing agency has taken the requisite hard look at a decision’s environmental consequences, the review is at an end: [872] Friends of the Southeast’s Future v Morrison applied.

2. The Forest Service developed a reasonable statement of purpose and needs: [873].

3. The Plaintiffs bear the burden of demonstrating that they brought a reasonable alternative to the Forest Service’s attention during the public NEPA process, and that such an alternative was not adequately considered: [875], City of Angoon v Hodel [1986] USCA9 2102; 803 F.2d 1016 (9th Cir 1986) applied. The plaintiffs failed to discharge that burden.

4. The Forest Service had weighed up considerations of cost, need and the viability of alternative action plans [874], [875], and did not act unreasonably in rejecting the various alternatives raised by the Plaintiffs during the project’s public scoping process.

5. The Historical Preservation Act demands that where a finding of adverse effects on the environment will take place, Native American tribes shall be consulted in an attempt to resolve the problem. In this matter the court found that the requirements of the Act had been fulfilled, as the Forest Service made extensive, good faith efforts to seek tribal input on the religious and cultural significance of the Peaks, and provided a reasonable opportunity for the tribes to participate in the resolution of the proposal’s adverse effects; [878], [879], [880].

6. The Endangered Species Act requires that prior to asserting a claim for violation of the Act, plaintiffs must provide written notice of the alleged violation to the Secretary of the Interior sixty days in advance of filing suit. Because the plaintiffs had not complied with this requirement, the court was without jurisdiction to consider the claim: [881], [882], Southwest Center for Biological Diversity v Bureau of Reclamation [1998] USCA9 1237; 143 F.3d 515 (9th Cir 1998) and Save the Yaak Comm v Block [1988] USCA9 482; 840 F.2d 714 (9th Cir 1988) applied.

7. The Grand Canyon Enlargement Act cannot be read to restrict government activities outside the Havasupai reservation. The Havasupai plaintiffs’ claims that their lands will be affected by the spring melt from the Snowbowl’s snow made from reclaimed water misconstrue the GCEA, and thus cannot succeed: [881], Havasupai Tribe v United States 752 F Supp 1471 (D. Ariz 1990) applies

8. The National Forest Management Act does not require that new analysis be conducted by the party wishing to conduct an action that may affect wildlife, flora and fauna. As such, it was reasonable of the Forest Service to rely on the most up to date data available when conducting an environmental impact statement, rather than conducting research of their own.

9. Under the Religious Freedom Restoration Act, to establish a prima facie case, a plaintiff must show that the law substantially burdens his ability to freely exercise his religion. [903], Guam v Guerrero [2002] USCA9 390; 290 F.3d 1210 (2002) applied. A government land management decision will not be a substantial burden unless it is shown that it coerces someone into violating his or her religious beliefs or penalises his or her religious activity. The plaintiffs failed to demonstrate that this decision coerces them into violating their religious beliefs, or to present any objective evidence that their exercise of religion will be impacted by the Snowbowl upgrades. As such, no prima facie case is made out under the RFRA: [904], [905] Lyng v Northwest Cemetery Protective Ass’n [1988] USSC 62; 485 US 439.

10. Additionally, the Forest Service has established a compelling interest in the use of the lands, and chose the least restrictive means for achieving its land management decision. [905], [906], [907].

11. A reviewing court should not second-guess the reasonable determination of the responsible government official by means of a de novo assessment of whether there is some other, less intrusive means of achieving the government’s objective. [907], Ward v Rock Against Racism: [1989] USSC 161; 491 US 781 (1989) followed. The Forest Service’s decision to authorise the upgrades was not a violation of the RFRA.

12. With respect to the issue of a trust, while the United States is a trustee for the tribes, that trust does not impose any additional enforceable fiduciary duties upon the government. Therefore, unless any specific duty has been placed upon the government with respect to Indians, the Forest Service’s general fiduciary duty is discharged by following all applicable statutes. Since the Court found that the Forest Service did not violate any statutes during the approval process, the duty has been satisfied: [882], Morongo Band of Mission Indians v FAA [1998] USCA9 1917; 161 F.3d 569 (9th Cir 1998) applied.