"Based upon the evidence presented at trial, the Court finds that the challenged Forest Service decisions violate (1) the First Amendment of the Constitution of the United States; (2) NEPA and the Wilderness Act; (3) the Federal Water Pollution Control Act; (4) Indian water and fishing rights on the Hoopa Valley Indian Reservation, and defendants' trust responsibility towards those rights; and (5) the Administrative Procedure Act. This memorandum constitutes the Court's findings of fact and conclusions of law.
"I. The First Amendment
"In reviewing the nature of the religious beliefs involved in this case, it must be remembered that their unorthodox character is no basis for denial of the protection of rights guaranteed by the Free Exercise Clause. See, e.g., Thomas v. Review Bd., 450 U.S. 707, 714, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1981). Thus, 'religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.' Id.
"The northeastern corner of the Blue Creek Unit is considered sacred land by members of the Yurok, Karok, and Tolowa Indian tribes. This region is known as the "high country." Although the high country includes the highest mountain peaks in this corner of the Blue Creek Unit, such as Chimney Rock, Doctor Rock, and Peak 8, the area considered sacred encompasses an entire region rather than simply a group of individual sites (Def. Ex. G-K, Theodoratus Report (hereinafter "Theo. Rpt."), at 419). The Indian plaintiffs and the State of California assert that either construction of Alternative D-4 (hereinafter the Chimney Rock Section) or implementation of the Management Plan would desecrate the high country in violation of the Indian plaintiffs' rights under the Free Exercise Clause of the First Amendment.
"The Indian plaintiffs' use of the high country for religious purposes is not in dispute. Ceremonial use of the high country by the Yurok, Karok, and Tolowa tribes dates back to the early nineteenth century (Trial Transcript (hereinafter "Tr.") at 267-68) and probably much earlier (Theo. Rpt. at 230-73, 386). Members of these tribes currently make regular use of the high country for several religious purposes. Individuals hike into the high country and use "prayer seats" located at Doctor Rock, Chimney Rock, and Peak 8 to seek religious guidance or personal "power" through "engaging in emotional [and] spiritual exchange with the creator" (Tr. at 79). Such exchange is made possible by the solitude, quietness, and pristine environment found in the high country. Certain key participants in tribal religious ceremonies such as the White Deerskin and Jump Dances must visit the high country prior to the ceremony to purify themselves and to make "preparatory medicine" (Theo. Rpt. at 46). (These dances provide the periodic "World Renewal" that is essential to the Indians' religious belief system. See Theo. Rpt. at 45-49.) The religious power these individuals acquire in the high country lends meaning to these tribal ceremonies, thereby enhancing the spiritual welfare of the entire tribal community (Tr. at 110-13; Theo. Rpt. at 417). Medicine women in the tribes travel to the high country to pray, to obtain spiritual power, and to gather medicines (Tr. at 237-39). They then return to the tribe to administer to the sick the healing power gained in the high country through ceremonies such as the Brush and Kick Dances (Id.; Theo. Rpt. at 52-58).
"For a number of reasons, the Indian plaintiffs contend that construction of the Chimney Rock Section would violate the sacred qualities of the high country and impair its successful use for religious purposes. First, they claim, visibility of the road from religious sites would damage the pristine visual conditions found in the high country that are essential for its religious use (Tr. at 239; Theo. Rpt. at 419-20). (The Chimney Rock Section would dissect the high country, and separate Chimney Rock to the north from Peak 8 and [**9] Doctor Rock to the south.) Second, increased aural disturbances from construction and use of the road would similarly impair the success of religious and medicinal quests into the high country. (The Forest Service estimates that an average of 76 logging and 92 other vehicles would traverse the Chimney Rock Section every day. Def. Ex. G, at 34.) Third, environmental degradation of the high country resulting from construction of the road would erode the religious significance of the areas (Theo. Rpt. at 420). Finally, religious use of the area would be impaired by increased recreational use resulting from construction of the Chimney Rock Section (Theo. Rpt. at 418-19).
"The Management Plan calls for the harvesting of timber and the construction of approximately 200 miles of logging roads in areas immediately adjacent to Chimney Rock, Doctor Rock, Peak 8, and to other religious sites within the high country. The Forest Service has proposed "protective zones" around Chimney Rock, Doctor Rock, Peak 8, and a few other sites, which would forbid timber harvesting or the construction of logging roads within one-half mile of these locations. See Def. Ex. C, at 224-25; Def. Ex. J. Even so, plaintiffs urge that these protective zones would fail significantly to mitigate the adverse visual, aural, and environmental impacts of logging activities on the high country's salient religious characteristics. (The religious integrity of the high country rests on the pristine qualities of the entire area rather than on just a few individual sites. Theo. Rpt. at 419. Because many of the most important sites are located at the highest elevations, the visual impact of logging the valleys between these peaks could not be mitigated. See Tr. at 239. In addition, under the Management Plan for "Golden Stairs Trail," which Indians on religious quests frequently use to reach the high country, would be "screened off" from logged areas on each side by strips of unlogged land only one-eighth mile in width. Def. Ex. C, at 224.
"A. The Free Exercise Clause
"The First Amendment forbids infringement of the free exercise of religion. Government action violates the Free Exercise Clause if it imposes a burden on the free exercise of religion unless the government establishes "a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise clause. Wisconsin v. Yoder, 406 U.S. 205, 214, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1971); see Sherbert v. Verner, 374 U.S. 398, 403-09, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1962). Furthermore, "only those interests of the highest order * * * can overbalance legitimate claims to the free exercise of religion." Yoder, supra, at 215. Even if the government advances such an interest, it must demonstrate that no other means of serving that interest exists which is less restrictive of plaintiffs' First Amendment rights.***
"In the present case, defendants concede that the Indian plaintiffs' use of the high country for religious practices is entitled to First Amendment protection. The Indian plaintiffs' claim that the high country is sacred is both sincerely held and "rooted in religious belief." Yoder, supra, 406 U.S. at 215-16. The unorthodox character of those religious beliefs does not deprive them of the safeguards contained in the Free Exercise Clause. See, e.g., Thomas, supra, 450 U.S. at 714. Similarly, plaintiffs' lack of a property interest in the high country does not release defendants from the constitutional responsibilities the First Amendment imposes on them.
"1. A Burden on the Free Exercise of Religion
"The first step in evaluating plaintiffs' claim based upon their constitutional right to the free exercise of religion is to determine whether the challenged actions do burden that right. The evidence establishes that construction of the Chimney Rock Section and/or implementation of the Management Plan would seriously impair the Indian plaintiffs' use of the high country for religious practices.
"For generations, individual members, spiritual leaders, and medicine persons of the Yurok, Karok, and Tolowa tribes have traveled to the high country to communicate with the "great creator," to perform rituals, and to prepare for specific religious and medicinal ceremonies. Such use of the high country is "central and indispensable" to the Indian plaintiffs' religion.... For the Yurok, Karok, and Tolowa peoples, the high country constitutes the center of the spiritual world. No other geographic areas or sites hold equivalent religious significance for these tribes. Further, use of the high country is essential to performing the "World Renewal" ceremonies, such as the White Deerskin and Jump Dances, which constitute the heart of the Northwest Indian religious belief system (Theo. Rpt. at 45-49). Finally, use of the high country in training young persons in the tribes in traditional religious beliefs and ceremonies is necessary to preserve such practices and to convey them to future generations (Tr. at 77). Degradation of the high country and impairment of such training would carry "a very real threat of undermining the [tribal] communit[ies] and religious practice[s] as they exist today." Yoder, supra, 406 U.S. at 218.
"Communication with the "great creator" is possible in the high country because of the pristine environment and opportunity for solitude found there (Theo. Rpt. at 419-20). Construction of the Chimney Rock Section and/or the harvesting of timber in the high country, including "clear-cutting, "would seriously damage the salient visual, aural, and environmental qualities of the high country. The Forest Service's own study concluded that "intrusions on the sanctity of the Blue Creek high country are * * * potentially destructive of the very core of Northwest [Indian] religious beliefs and practices" (Theo. Rpt. [**19]Ê Rpt. at 420).
"Upon careful analysis, it will be seen that prior cases involving Indian religious claims support the conclusion that the government actions proposed here burden the free exercise of plaintiffs' religion. ***
"2. Overriding State Interest
"Once a burden on the free exercise of religion is established "only those interests of the highest order" can uphold the challenged government action. Wisconsin v. Yoder, 406 U.S. 205, 215, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972). Defendants assert that construction of the Chimney Rock Section of the G-O road would (1) increase the quantity of timber accessible to harvesting in the Blue Creek Unit; (2) stimulate employment in the regional timber industry; (3) provide recreational access to the Blue Creek Unit as well as permit through recreational traffic on the G-O road; (4) further the efficient administration of Six Rivers National Forest by the Forest Service; and (5) increase the price of bids on future timber sales in the Orleans area of Six Rivers National Forest by decreasing the cost of hauling such timber to timber mills located in Del Norte County (Tr. at 1258-59). Defendants also contend that implementation of the Management Plan would increase timber production in the Blue Creek Unit, thereby stimulating the regional timber industry and increasing Forest Service revenues, a fixed proportion of which is returned to the four counties partly located in Six Rivers National Forest.
"Construction of the Chimney Rock Section would not materially serve several of the claimed governmental interests. First, the Forest Service concedes that construction of the Chimney Rock Section would not improve access to timber resources in the Blue Creek Unit. That timber could be harvested without building the Chimney Rock Section (Tr. at 1298; Def. Ex. G, App. B, at 1). Second, completion of the Chimney Rock Section would result in no net increase in the number of jobs in the regional timber industry. The most it would accomplish would be the transfer of a certain number of jobs from Humboldt County to Del Norte County (Tr. at 1305). Third, increased recreational access to the area as a result of construction of the Chimney Rock Section cannot support infringement of plaintiffs' First Amendment rights. Recreational access to the area currently exists, and the Forest Service projects that an average of only eight vehicles per day would use the road for recreational purposes (Def. Ex. G, at 34). Moreover, although recreational access to the area by means of motor vehicles would be somewhat improved, resulting environmental degradation would decrease the area's suitability for primitive recreational use.
"The remaining interests defendants offer in support of construction of the Chimney Rock Section fall far short of constituting the "paramount interests" necessary to justify infringement of plaintiffs' freedom of religion. Sherbert, supra, 374 U.S. at 406. Construction of the road would not greatly improve the efficient administration of Six Rivers National Forest. The Forest Service is currently able efficiently to provide all needed administrative services to the Chimney Rock-Doctor Rock area (Tr. at 1333). In fact, several such services, such as insect control, habitat improvement, and monitoring of visitors, are provided on a districtwide rather than forestwide basis. Thus, provision of these services in the Blue Creek Unit would be shared by the district rangers stationed in Orleans and Gasquet regardless of whether the Chimney Rock Section is constructed. Hence, construction of the road would not make the provision of these services significantly more efficient (Tr. at 1324-26). The Forest Service's interest in more efficiently providing road maintenance and fire protection cannot justify infringement of the free exercise of plaintiffs' religion. Both services are efficiently provided at present.
"Defendants' claim that construction of the Chimney Rock Section would increase competition for timber in the Orleans area of Six Rivers National Forest, and thus increase Forest Service revenues. This claim is too speculative to support infringement of plaintiffs' First Amendment rights. Although construction of the Chimney Rock Section would reduce timber haul costs from the Orleans region to Del Norte County mills, no increase in bid prices on timber sales in the Orleans area would result unless Del Norte County mills can effectively compete for sales in the Orleans region. A large number of mills in Humboldt County currently compete for these sales. See Pl. Ex. 45(a). Defendants failed to introduce any evidence whatever establishing Ê[**25]Ê the likely effect of the road construction on regional timber markets. See Tr. at 1159-62, 1166-67, 1258; Def. Ex. E, at 107-08, App. D & E. Such speculative and diffuse goals as these cannot provide the basis for denying plaintiffs' free exercise claim. See Sherbert, supra, 374 U.S. at 407.
"Past investment of resources in existing paved sections of the G-O road does not justify construction of the Chimney Rock Section. Those sections of the G-O road provide improved and useful access to vast recreational, timber, and other resources in the region (Tr. at 1298, 1332-33).
"Harvesting of timber from the Blue Creek Unit pursuant to the Management Plan would not serve any compelling public interest. That timber is a small fraction of the timber resources found in the entire Six Rivers National Forest. Its harvesting would not significantly affect timber supplies. Moreover, the regional timber industry will not suffer greatly without access to timber in the Unit. Finally, even if defendants could demonstrate a compelling need for additional timber harvesting in the Blue Creek Unit, means less restrictive of plaintiffs' First Amendment rights than the Management Plan exist that would satisfy that need. The Management Plan could easily be more narrowly tailored to accommodate Indian religious use of the high country and at the same time exploit most of the timber resources present in the Blue Creek Unit. See Def. Ex. C, at 118-25 (discussing Alternatives A & B); Tr. at 1312-15 (possibility of increasing size of Indian religious protective zones).***
"II. American Indian Religious Freedom Act of 1978
"The Indian Plaintiffs also assert that construction of the Chimney Rock Section and implementation of the Management Plan would violate the American Indian Religious Freedom Act of 1978 (AIRFA), 42 U.S.C. ¤ 1996. That Act states "it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the[ir] traditional religions * * *, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites."
"The AIRFA "does not [expressly] create a cause of action in federal courts for violation of rights in religious freedom." Crow v. Gullet, 541 F. Supp. 785, 793 (D.S.D. 1982). Rather, at most it requires "that agencies evaluate their policies and procedures with the aim of protecting Indian religious freedoms." Hopi Indian Tribe v. Block, 8 ILR 3073, 3076 (D.D.C. June 15, 1981). The legislative history of the Act supports this interpretation. Id.; Pl. Ex. G, App. A.
"Although defendants' proposed actions violate the Indian plaintiffs' First Amendment rights, defendants did make sufficient efforts to protect those rights to satisfy the requirements of the AIRFA. Defendants commissioned studies on Indian religious beliefs and practices, see Def. Ex. G-K & F, and held hearings at which Indian representatives testified. In addition, defendants selected the D-4 route for the Chimney Rock Section in part in order to lessen the road's adverse impacts on Chimney Rock (Def. Ex. G, at 53). Under these circumstances, defendants' decisions to construct the Chimney Rock Section and to implement the Management Plan comply with the mandate of the AIRFA. Judge Stanley A. Weigel found "use of the high country [by the religious community was] . . . essential to 'World Renewal' ceremonies . . . which constitute the heart of the Northwest Indian religious belief system' and that "'intrusion on the sanctity of the Blue Creek high country are . . . potentially destructive of the very corse of Northwest [Indian} religious beliefs and practices.'
"Under its review of Indian Cultural Resources
"Although the FEIS asserts that the proposed Chimney Rock Section would have less visual and audible impacts on Chimney Rock than would alternative routes, it unequivocally states that "all of the proposed routes will create an adverse impact [on Indian cultural resources]," and that "some impacts appear to be unmitigable" (Def. Ex. G, at 52-53). Further, the Theodoratus Report, adopted by the Forest Service, acknowledges that "the nature of Northwest Indian perceptions of the high country and the requirements of their specific religious beliefs and practices associated with the high country make mitigation of the impact of construction of any of the proposed routes [for the Chimney Rock Section] impossible" (Theo. Rpt. at 420). Although the Forest Service gave inadequate weight to the religious interests at stake, the FEIS acknowledges the harsh impact that construction of the Chimney Rock Section would have on Indian religious use of the high country. NEPA requires no more. See Save Lake Washington v. Frank, 641 F.2d 1330, 1334 (9th Cir. 1981)."
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