Confederated Tribes and Bands of The Yakama Nation v. U.S. Fish and Wildlife Service et al, No. 1:2014cv03052 - Document 25 (E.D. Wash. 2014)
Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER. Plaintiffs Motion for a Temporary Restraining Order ECF No. 6 is DENIED. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)
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Confederated Tribes and Bands of The Yakama Nation v. U.S. Fish and Wildlife Service et al Doc. 25 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 8 CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION, Plaintiff, 9 10 11 12 13 14 NO: 1:14-CV-3052-TOR ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER v. 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; LARRY KLIMEK, Manager Hanford Reach National Monument, 15 Defendants. 16 17 BEFORE THE COURT is Plaintiff’s Motion for a Temporary Restraining 18 Order (ECF No. 6). This matter was heard with oral argument on May 5, 2014. 19 Thomas A. Zeilman appeared on behalf of Plaintiff. Vanessa R. Waldref appeared 20 on behalf of Defendants. The Court has reviewed the briefing and the record and ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 1 Dockets.Justia.com 1 files herein, and is fully informed. This Order memorializes and supplements the 2 Court’s oral ruling. 3 BACKGROUND 4 This case concerns guided bus tours for members of the general public on 5 Rattlesnake Mountain in the Hanford Reach National Monument conducted by 6 Defendant United States Fish and Wildlife Services (“USFWS”). Plaintiff 7 Confederated Tribes and Bands of the Yakama Nation (“the Yakama Nation”) 8 seeks judicial review of the USFWS’s agency decision and actions that the guided 9 tours will have no adverse effect on the site, which has been designated a 10 Traditional Cultural Property (“TCP”) under the National Historic Preservation Act 11 (“NHPA”). In the motion now before the Court, Plaintiff seeks a temporary 12 restraining order (“TRO”) prohibiting the two remaining scheduled bus tours in 13 2014. For the reasons explained below, the Court denies Plaintiff’s motion. 14 FACTS 1 15 The Yakima Nation is a federally recognized Indian Tribe. Defendant 16 USFWS is responsible for administration and management of certain federally 17 1 18 Unless otherwise indicated, the following facts are primarily drawn from 19 Plaintiff’s complaint and documents appended to the instant motion, and are 20 accepted as true for the purposes of this motion. ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 2 1 owned lands, including those lands comprising the National Wildlife Refuge 2 system and Hanford Reach National Monument. Defendant Robyn Thorson is the 3 Regional Director of the Pacific Region of the USFWS and is named in her official 4 capacity. Defendant Charles Stenvall is the Manager of the USFWS Mid-Columbia 5 National Wildlife Refuge Complex and is named in his official capacity. 6 Defendant Larry Klimek is the USFWS Manager of the Hanford Reach National 7 Monument and is named in his official capacity. 8 Rattlesnake Mountain, overlooking the Hanford Site in Benton County, 9 Washington, is known to the Yakama Nation as Laliik, and means “standing above 10 the water.” Laliik has cosmological, religious, and cultural significance for the 11 Yakama Nation and other Indian tribes. The Yakama Nation ceded the land on 12 which Laliik is situated to the United States under the Treaty of 1855. From 1943 13 through 1987, the United States used the area as a buffer zone for the Hanford Site. 14 In 1967, the Atomic Energy Commission formally designated the western sector of 15 the Hanford Site, including Laliik, as the Arid Lands Ecology Reserve (“ALE”). In 16 1977, the Department of Energy took control of the Hanford site, including ALE. 17 In 1997, administration and management of the mountain was transferred to 18 USFWS, and it was subsequently included in the Saddle Mountain National 19 Wildlife Refuge. Ultimately, the area was included in the Hanford Reach National 20 Monument, pursuant to the Antiquities Act of 1906. In 2007, Laliik was designated ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 3 1 as a Traditional Cultural Property (“TCP”) pursuant to §101(d)(6)(A) of the 2 National Historic Preservation Act (“NHPA”). A TCP is a “property of traditional 3 religious and cultural importance to an Indian tribe” and is thereby eligible for 4 listing on the National Register of Historic Places. 5 USFWS has maintained the public access restriction to the area that began in 6 1943 when the military and later the Department of Energy managed the area, 7 using fences, locked gates, and policy to restrict access to authorized uses, 8 according to the June 2012 report on wildflower tours. ECF No. 21-1 at 8. 9 On February 17, 2012, USFWS emailed the Yakama Nation with a request 10 for a review of a proposed undertaking pursuant to § 106 of the NHPA. The 11 undertaking consisted of two three-hour guided bus tours on one day on Laliik for 12 the public to view the spring wildflowers. On March 13, 2012, the Yakama Nation 13 responded that it did not concur under the NHPA. On April 26, 2012, USFWS 14 issued a finding that the wildflower tours presented “no adverse effect” on the 15 Laliik TCP. On April 30, 2012, State Historic Preservation Officer Allyson 16 Brooks notified the USFWS that she did not concur with the finding of no adverse 17 effect. On May 1, 2012, USFWS sent a cultural review of the wildflower tours to 18 the State Historical Preservation Office and Yakama Nation for comment, 19 documenting the finding of no adverse effect and stating that “as a potential threat 20 to the integrity of Laliik’s feeling and association, the wildflower tour is fleeting.” ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 4 1 On June 7, 2012, USFWS notified the Yakama Nation that it was expanding 2 the proposal for future wildflower tours at the Laliik TCP to six tour days per year 3 (two tours per day) for the next five years. The § 106 review contained the same 4 information regarding potential effects and the same finding of no adverse effect. 5 USFWS informed the Tribe that it would have the Advisory Council on Historic 6 Preservation review the new proposal because the Tribe and the State Historical 7 Preservation Office had not concurred with the USFWS. On December 6, 2012, 8 the Tribe told the ACHP that it did not concur with the new tours proposal. On 9 December 28, 2012, the ACHP gave the USFWS detailed comments on a proposed 10 elk hunt on Laliik, but did not comment on the wildflower tours. It did, however, 11 specify the need to manage all projects on the TCP to mitigate adverse effects. 12 On January 17, 2013, Defendant Robyn Thorson met with the Yakama 13 Tribal Council regarding a number of matters; consultation for the wildflower tours 14 was scheduled for that meeting, but the discussion did not take place due to time 15 constraints. 16 On February 13, 2013, USFWS told the Chairman of the Tribal Council that 17 USFWS had met its NHPA § 106 consultation obligations and would proceed with 18 the wildflower tours in May 2013, managed in a way that would produce “no 19 adverse effect.” 20 ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 5 1 On March 26, 2013, a representative from the Yakama Nation met with 2 Charles Stenvall and Larry Klimek and expressed that the Tribe objected to the 3 expanded wildflower tours. Defendants reiterated to him that USFWS had met all 4 NHPA obligations and were proceeding with the wildflower tours. The Tribe 5 again objected to the finding of no adverse effect in a letter to the Acting Assistant 6 Interior Secretary for Fish and Wildlife and Parks. In response, Acting Assistant 7 Secretary Jacobson stated that USFWS had met all NHPA § 106 obligations and 8 that there would be no adverse effect if all work controls and project modifications 9 were followed. 10 11 12 13 14 USFWS conducted four wildflower tours at the Laliik TCP over the course of two days, May 1 and May 4, 2013. On May 16, 2013, the Tribe notified Jacobson that USFWS never conducted government-to-government consultation on the expanded tour. On January 16, 2014, USFWS’s website linked to articles and photos from 15 the 2013 tours that the Tribe claims indicate that the USFWS had not followed the 16 work controls. On February 3, 2014, Yakama Nation staff members met with 17 ACHP members in Washington, D.C., regarding the adverse effects to Laliik. On 18 April 9, 2014, the ACHP recommended to USFWS that it consult further with the 19 Tribe prior to any further wildflower tours on the Laliik TCP, citing the allegedly 20 unfollowed work controls and the Tribe’s belief that there was an adverse effect. ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 6 1 HRNM management told the Yakama Nation that the USFWS had made a 2 final agency decision to proceed with eight wildflower tours, scheduled for April 3 25 and 27, and May 8 and 10, 2014. The Yakama Nation filed a complaint in this 4 Court on April 22, 2014. On April 28, after the first two days of tours occurred, the 5 Tribe moved the Court for a temporary restraining order prohibiting the tours 6 scheduled for May 8 and 10, 2014. 7 DISCUSSION 8 The Yakama Nation maintains that USFWS did not adequately consult with 9 it on a government-to-government basis before approving the wildflower tours and 10 finding that they presented no adverse effect to the Laliik TCP, as required under 11 NHPA § 106. They maintain that a temporary restraining order is justified, 12 prohibiting the USFWS from conducting the two remaining scheduled wildflower 13 tours on May 8 and 10, 2014, pending the USFWS’s proper consultation with the 14 Tribe. 15 Pursuant to Rule 65 of the Federal Rules of Civil Procedure, the Court may 16 grant preliminary injunctive relief in order to prevent “immediate and irreparable 17 injury.” Fed.R.Civ.P. 65(b). The analysis for granting a temporary restraining order 18 is “substantially identical” to that for a preliminary injunction. Stuhlbarg Intern. 19 Sales Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832, 839 fn. 7 (9th Cir. 20 2001). It “is an extraordinary remedy never awarded as of right.” Winter v. ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 7 1 Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain this relief, a 2 plaintiff must establish that (1) he is “likely to succeed on the merits,” (2) he is 3 “likely to suffer irreparable harm in the absence of preliminary relief,” (3) “the 4 balance of equities tips in his favor,” and (4) “an injunction is in the public 5 interest.” Id. at 20. “In each case, courts ‘must balance the competing claims of 6 injury and must consider the effect on each party of the granting or withholding of 7 the requested relief.’” Id. at 24 (citing Amoco Production Co. v. Village of 8 Gambell, Alaska, 480 U.S. 531, 542 (1987)). The Ninth Circuit uses a “sliding 9 scale” under which the temporary restraining order may be issued if there are 10 serious questions going to the merits and the balance of hardships tips sharply in 11 the plaintiff's favor, along with satisfaction of the two other Winter factors. 12 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) 13 (“For example, a stronger showing of irreparable harm to plaintiff might offset a 14 lesser showing of likelihood of success on the merits.”). 15 A. Likelihood of Success on the Merits 16 The Court's review of agency action under the NHPA is governed by the 17 Administrative Procedure Act. Under 5 U.S.C. § 706 the Court is directed to 18 compel agency action that has been unlawfully withheld, (§ 706(1)), and hold 19 unlawful and set aside agency actions it finds to be “arbitrary, capricious, abuse of 20 discretion, or otherwise not in accordance with law” (§ 706(2)(A)), or “without ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 8 1 observance of procedure required by law” (§ 706(2)(D)). The burden is on the 2 Tribe to show any decision or action was arbitrary and capricious. Kleppe v. Sierra 3 Club, 427 U.S. 390, 412 (1976). Agency action will be upheld if the agency “has 4 considered the relevant factors and articulated a rational connection between the 5 facts found and the choice made.” Baltimore Gas & Elec. Co. v. Natural Res. Def. 6 Council, Inc., 462 U.S. 87, 105 (1983). An agency’s decision can be upheld only 7 on the basis of the reasoning in that decision. Anaheim Memorial Hospital v. 8 Shalala, 390 F.3d 630, 638 (9th Cir. 2004). “The scope of review under the 9 ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its 10 judgment for that of the agency,” but “the agency must examine the relevant data 11 and articulate a satisfactory explanation for its action including a ‘rational 12 connection between the facts found and the choice made.’” Motor Vehicle Mfrs. 13 Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) 14 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). An 15 agency decision may be reversed under the arbitrary and capricious standard if the 16 agency “relied on factors that Congress did not intend it to consider, or offered an 17 explanation for its decision that runs counter to the evidence or is so implausible 18 that it could not be ascribed to a difference in view or the product of agency 19 expertise.” Snoqualmie Indian Tribe v. Federal Regulatory Commission, 545 F.3d 20 ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 9 1 1207, 1212 (9th Cir. 2008) (citing Sierra Club v. EPA, 346 F.3d 955, 961 (9th Cir. 2 2003)). 3 1. Consultation 4 Under NHPA Section 106 (16 U.S.C. § 470f) and its implementing 5 regulations, USFWS is required to consult with the Tribe before spending money 6 on or approving any federally-assisted undertaking such as the project at issue 7 here. The consultation process is governed by 36 C.F.R. § 800.2(c)(2), one of 8 § 106's implementing regulations. In the consultation, 9 12 [t]he agency official shall ensure that consultation in the section 106 process provides the Indian tribe or Native Hawaiian organization 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 on the undertaking's effects on such properties, and participate in the resolution of adverse effects. 13 36 C.F.R. § 800.2(c)(2)(ii)(A). Furthermore, the consultation “must recognize the 14 government-to-government relationship between the Federal Government and 15 Indian tribes” and is to be “conducted in a manner sensitive to the concerns and 16 needs of the Indian tribe.” § 800.2(c)(2)(ii)(C). However, “[i]f within the 30 day 17 review period the SHPO/THPO or any consulting party notifies the agency official 18 in writing that it disagrees with the finding and specifies the reasons for the 19 disagreement in the notification, the agency official shall either consult with the 20 party to resolve the disagreement, or request the Council to review the finding 10 11 ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 10 1 pursuant to paragraphs (c)(3)(i) and (c)(3)(ii) of this section.” 36 C.F.R. 2 § 800.5(c)(2)(i). The code further provides: 3 4 5 6 7 8 When a finding is submitted to the Council pursuant to paragraph (c)(2)(i) of this section, the Council shall review the finding and provide the agency official and, if the Council determines the issue warrants it, the head of the agency with its opinion as to whether the adverse effect criteria have been correctly applied. A Council decision to provide its opinion to the head of an agency shall be guided by the criteria in appendix A to this part. The Council will provide its opinion within 15 days of receiving the documented finding from the agency official. The Council at its discretion may extend that time period for 15 days, in which case it shall notify the agency of such extension prior to the end of the initial 15 day period. If the Council does not respond within the applicable time period, the agency official's responsibilities under section 106 are fulfilled. 9 10 11 36 C.F.R. § 800.5(c)(3) (emphasis added). Despite the Tribe’s contention that USFWS did not consult as required under 12 applicable law, the complaint and documentation submitted evidences a back-and- 13 forth exchange between USFWS and Tribal representatives. The June 2012 Section 14 106 report states, 15 16 17 18 19 20 The FWS has consulted with the cultural resource staff and the leaders of the Yakama Nation, Confederated Tribes of the Umatilla Indian Reservation (CTUIR), the Nez Perce Tribe, and the Wanapum (collectively referred to as the “Tribes” in this report) on the undertaking, APE, and potential effects of the wildflower tour on historic properties. The consultation included a meeting at the FWS office in Burbank, Washington, on February 2, 2012 and a written/email correspondence from the FWS to the Times on February 17, 2012….The FWS has modified the original tour concept in response to concerns raised by the Tribes. Modifications included 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. ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 11 1 ECF No. 21-1 at 4. Emails indicate that the USWFS communicated with the tribe, 2 including Harry Smiskin, Chairman of the Yakama Nation Tribal Council, offering 3 the Tribe a “reasonable opportunity” to respond. A March 13, 2012, email from 4 Rose Ferri states that the Yakama Nation “cannot concur” with the undertaking, 5 “as it would constitute [an] adverse effect to the Laliik TCP.” ECF No. 7 at 11. An 6 April 26, 2012, letter to Chairman Smiskin requests review of the USFWS report 7 on the wildflower tours. ECF No. 7 at 14. As USFWS Historical Preservation 8 Officer Anan Raymond stated in a letter November 16, 2012, regarding the 9 approval for the more extensive tours over the course of five years, the consulting 10 parties indicated that the additions to the original 2012 tour proposal did not 11 change their objections to the tour. Thus, USFWS appears to have consulted the 12 Tribe regarding the second round of tours. 13 The Tribe argues that the consultation was inadequate, citing the request of 14 Harry Smiskin, Chairman of the Yakama Nation Tribal Council, for a government 15 to government consultation with the USFWS in a letter dated March 22, 2013. ECF 16 No. 7-1 at 9. Smiskin had previously stated that government-to-government 17 consultation had not taken place in the past because no staff member was 18 authorized to make decisions for the Tribal Council. ECF No. 7-1 at 6. Principal 19 Deputy Assistant Secretary of the Interior Rachel Jacobson replied to Smiskin’s 20 March 22 letter by stating that the USFWS had met its regulatory requirements to ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 12 1 consult consistent with § 106, pointing to the modifications to the tour, including 2 limiting group size, limiting the area traversed at stops, and keeping the group 3 together and supervised. ECF NO. 7-1 at 11. The Government argues that USFWS 4 consults with the Hanford Area Tribes (including the Yakama Nation, 5 Confederated Tribes of the Umatilla Reservation, Nez Perce Tribe and the 6 Wanapum Band) regularly in the manner it did for the wildflower tours. ECF No. 7 23 at 3. In practice, USFWS transmits information and findings concerning 8 undertakings separately to each tribe by letter, email and personal exchange—a 9 practice established by the Department of Energy two decades ago, according to 10 the Government. Id. USFWS acknowledges that this process is not codified by a 11 charter or agreement document. Id. 12 Given the lack of formal consultation procedure between the USFWS and 13 the Tribe, and the fact that there was significant communication between the 14 USFWS and the Tribe regarding the tours, the Court does not find that, for the 15 purposes of the motion now before the Court, the Tribe is likely to succeed on the 16 merits of its claim that it was inadequately consulted about the tours. 17 Furthermore, the evidence indicates that USFWS followed the correct 18 procedure for occasions when there is disagreement about a proposed course of 19 action. As Anan Raymond’s declaration indicates, the USFWS’s November 2012 20 transmittal and report requested that the Advisory Council on Historic Preservation ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 13 1 review the Service’s determination of no adverse effect. ECF No. 21 at 5; ECF No. 2 7 at 18 (November 16, 2012 letter from USFWS to the Advisory Council on 3 Historic Preservation explaining the Tribe’s dispute with the finding of no adverse 4 effect and their inability to come to a resolution). Raymond’s declaration states that 5 the Council did not respond to USFWS within the time prescribed by 36 C.F.R. 6 800.5, and when contacted, the Council representative stated that the Council had 7 no plans to respond. Id. An April 9, 2014, letter from the Advisory Council 8 indicates that it did not respond to USFWS’s request for resolution of the dispute. 9 ECF No. 7-1 at 5. While it does reference a letter dated December 28, 2012, 10 regarding an advisory opinion that the “historic qualities exhibited by Laliik and its 11 integrity of setting, feeling, and association for the tribes may be compromised by 12 the proposed elk hunts,” The council acknowledges that “[a]t the time it did not 13 opine on whether the wildflower tours would constitute an Adverse Effect.” Id. 14 Additionally, the April 9, 2014, letter from the Council indicates that its letter 15 about the elk hunts was dated after the responsive time period had elapsed. Id. 16 Thus, there are numerous indications—from the Tribe’s evidence and the 17 Government’s—that the USFWS followed the consultation procedure outlined in 18 the C.F.R.s. 19 /// 20 /// ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 14 1 2. Finding of adverse effects 2 The Tribe contends that the finding of no adverse effects was arbitrary and 3 capricious for several reasons. First, the Tribe argues that the USWFS expanded 4 the number of tours into an annual activity that will occur for five years. ECF No. 5 19 at 15. As such, the Tribe argues, the once “fleeting intrusion” reflected in the 6 report may have a more invasive and destructive potential than first anticipated. Id. 7 The Tribe argues that under the APA, this is a relevant factor that the USFWS 8 “utterly failed to consider” in its reasoning behind the “no adverse effect” finding. 9 Id. at 16. The Tribe contends that “the April 2012 and the June 2012 Section 106 10 Review have no rational connection with each other,” but even if the Court finds 11 that they do, the decision is arbitrary and capricious because the proposal has 12 changed significantly. Id. Second, Plaintiff argues that evidence from the USFWS 13 website indicates that adverse effects occurred on the May 2013 wildflower tours. 14 Id. Third, the Tribe argues that USFWS never looked at alternatives to the location 15 of the wildflower tours in areas of the HRNM that were not as culturally sensitive. 16 Id. at 17. The Tribe contends that this is a “relevant factor” which the USFWS 17 failed to consider in the Section 106 review. Id. 18 Under 36 C.F.R. § 800.5, the “agency official must apply the criteria of 19 adverse effect to historic properties within the area of potential effects.” “An 20 adverse effect is found when an undertaking may alter, directly or indirectly, any ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 15 1 of the characteristics of a historic property that qualify the property for inclusion in 2 the National Register in a manner that would diminish the integrity of the 3 property’s location, design, setting, materials, workmanship, feeling, or 4 association.” 36 C.F.R. § 800.5(a)(1). Examples of adverse effects include: 5 6 7 8 9 (i) Physical destruction of the property; (ii) Alteration of a property…; (iii) Removal of the property from its historic location; (iv) change of the character of the property’s use or physical features within the property’s setting that contribute to its historic significance; (v) introduction of visual, atmospheric or audible elements that diminish the integrity of the property’s significant historic features; (vi) Neglect of a property which causes its deterioration…; (vii) Transfer, lease or sale of property…. 36 C.F.R. §800.5(a)(2). 10 First, given the record before the Court, the only significant change between 11 the Section 106 report from April 2012 and the Section 106 report from June 2012 12 is the number of people. It is reasonable to conclude that the precautions and 13 reasoning that the USFWS determined would be sufficient for two tours in 2012 14 (ECF No. 6-1 at 3) would also be sufficient for up to 12 tours a year for five years 15 (ECF No. 21-1 at 3. Though larger in number, the overall effect is similar in that 16 the tours are short (three hours), do not involve any permanent structure, and 17 would both be subject to the same controls, including keeping the bus on the roads, 18 limiting the walking range to 100 meters, and supervising the tourists. See ECF 19 No. 21-1 at 3-4. Thus, the transfer of reasoning from two tours to twelve tours has 20 not been shown to be arbitrary and capricious on this record. ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 16 1 Nor has it been shown on this record that the 2013 tours had an adverse 2 effect. For its argument, the Tribe cites a photograph from the USFWS website on 3 the tours of a rock cairn described as sacred and culturally significant. But 4 evidence submitted by the Government indicates somewhat persuasively that the 5 rock cairn’s provenance was very recent and does not represent a prehistoric or 6 historic archaeological site. And the Tribe has not shown, at least in the context of 7 this motion, how the temporary presence of other people or photography 8 “alters…the characteristics of [the]historic property that qualify the property for 9 inclusion in the National Register in a manner that would diminish the integrity of 10 the property’s location, design, setting materials, workmanship, feeling or 11 association.” See 36 C.F.R. § 800.5(a)(1). 12 Third, evidence submitted by USFWS indicates that the Rattlesnake 13 Mountain site “provides an ecological setting that allows for unique expression of 14 plant communities” due to climate, soil, and elevation not represented elsewhere 15 on the reserve. Declaration of Larry Klimek, ECF No. 22 at 3-5. The 2012 16 wildflower tours were conducted outside of the Laliik TCP on Yakima Ridge, and, 17 according to the Declaration of Larry Klimek, “were not of the same quality” as 18 the 2013 wildflower tours, indicating that the USFWS had considered alternatives 19 at the time it issued the June 2012 report. 20 ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 17 1 2 Thus, the evidence before the Court does not support a finding that the agency’s decision was arbitrary and capricious. 3 B. Irreparable Harm 4 Having concluded above that the USFWS finding of no adverse effect was 5 likely not arbitrary or capricious or unlawful, the Court likewise concludes that the 6 finding of no adverse effect indicates that there is little likelihood of irreparable 7 harm. 8 The Tribe’s briefing and oral argument simply failed to establish a basis for 9 finding that irreparable harm would likely occur by allowing the final two days of 10 tours in 2014 to continue as scheduled. First, Plaintiff’s counsel stated during oral 11 argument that the large number of tourists would inevitably harm the environment 12 and artifacts on the mountain, estimating the number over the course of five years 13 at 1,500 people. But the TRO motion requests an order preventing two days of 14 scheduled tours in 2014, which, by the Court’s calculation, would involve 15 approximately 100 people. Other than numbers, Plaintiff does not articulate how 16 the presence of people on the mountain would irreparably harm its value to the 17 Tribe or its character as a TCP. 18 Furthermore, Plaintiff did not identify and articulate any specific harms that 19 arose out of the tours that took place in 2013, citing again the general negative 20 effects on the environment and spiritual experience of the Tribe. The Tribe cites ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 18 1 the photographs from the USFWS website as evidence that USFWS was not 2 following the work controls, but the photographs indicate a news media member 3 photographing or filming a flower, and a photo of a rock cairn without other people 4 visible in the photo. USFWS submitted a declaration stating that an archaeologist 5 determined that the rock cairn pictured on the site was of recent origin, and not a 6 historic or prehistoric archaeological site. ECF No. 21 at 6. Plaintiff contends that 7 damage to environmental resources is usually considered irreparable, but as all 8 driving will take place on already established roads, and the tourist themselves will 9 be supervised and kept in a contained area around the bus, the Court fails to see 10 how their presence will irrevocably damage the environment. As the 2012 report 11 indicates, the area will not be opened to unfettered public access. The USFWS 12 Cultural Resource Compliance report on the wildflower tours, updated June 2012, 13 emphasized the transitory nature of the tours. ECF No. 21-1 at 12. The tours are 14 designed to be temporary and controlled, and to leave no physical trace. USFWS 15 has stated that it took measures to prevent harm to the specific artifacts of spiritual 16 and cultural significance. See ECF No. 21-1 at 8-10. Without more, Plaintiff has 17 not adequately supported its claim that the mere physical presence of other people 18 on the TCP will do irreparable harm. 19 20 The Court is sensitive to the Tribe’s argument that the presence of tourists negatively impacts the spiritual tenor of the place and may conflict with the Tribe’s ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 19 1 First Flood ceremonies. But, as it stated in the 2012 report, the USFWS has 2 indicated that it is willing to conduct the tour on days that do not coincide with 3 Tribal cultural activities. 4 C. Balance of the Equities and the Public Interest 5 Nor does the Court find that the last two Winters factors militate for issuance 6 of a TRO. First, the balance of the equities does not tip strongly in favor of 7 issuance of a TRO. Though the Tribe certainly has a strong interest in preservation 8 of its culture and spiritual interest, the public also has an interest in being allowed 9 to see and experience the land, as long as precautions are taken to preserve the 10 nature of the place. Without a clearer articulation about how the tours harm that 11 experience—limited as they are in time and scope—the Court perceives no strong 12 tip of the balance of equities such that a TRO/preliminary injunction is warranted. 13 Similarly, prohibiting the final two wildflower tours appears to weigh against 14 public interest, as the wildflower tours represent a rare chance for the public to 15 have access—in a limited way—to this area. 16 The Court notes that relevant case law supports the denial of a TRO under 17 these circumstances. A fairly recent Ninth Circuit case, for example, rejected an 18 argument that use of artificial snow consisting of recycled wastewater on a 19 mountain sacred to certain Indian tribes violated the Religious Freedom Act, the 20 National Environmental Policy Act, or the National Historical Preservation Act. ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 20 1 Navajo Nation v. United States Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en 2 banc). The court noted that: 3 4 5 6 7 8 9 10 11 12 13 the sole effect of the artificial snow is on the Plaintiffs' subjective spiritual experience. That is, the presence of the artificial snow on the Peaks is offensive to the Plaintiffs’ feelings about their religion and will decrease the spiritual fulfillment Plaintiffs get from practicing their religion on the mountain. Nevertheless, a government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a “substantial burden”—a term of art chosen by Congress to be defined by reference to Supreme Court precedent—on the free exercise of religion. Where, as here, there is no showing the government has coerced the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs, there is no “substantial burden” on the exercise of their religion. Were it otherwise, any action the federal government were to take, including action on its own land, would be subject to the personalized oversight of millions of citizens. Each citizen would hold an individual veto to prohibit the government action solely because it offends his religious beliefs, sensibilities, or tastes, or fails to satisfy his religious desires. Further, giving one religious sect a veto over the use of public park land would deprive others of the right to use what is, by definition, land that belongs to everyone. 14 15 16 17 18 19 “[W]e are a cosmopolitan nation made up of people of almost every conceivable religious preference.” Braunfeld v. Brown, 366 U.S. 599, 606, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961). Our nation recognizes and protects the expression of a great range of religious beliefs. Nevertheless, respecting religious credos is one thing; requiring the government to change its conduct to avoid any perceived slight to them is quite another. No matter how much we might wish the government to conform its conduct to our religious preferences, act in ways that do not offend our religious sensibilities, and take no action that decreases our spiritual fulfillment, no government—let alone a government that presides over a nation with as many religions as the United States of America—could function were it required to do so. 20 ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 21 1 Navajo Nation v. U.S. Forest Serv., 535 F.3d at 1063-64 (some internal citations 2 omitted) (emphasis added). Thus, while the Tribe’s interest in preserving Laliik for 3 cultural and spiritual experiences is very important, the Court cannot, without 4 more, foreclose others who want to experience the mountain’s uniqueness from 5 sharing that space. 6 The Court reiterates that this is not a decision on the merits; simply a finding 7 that the record before the Court does not support the issuance of such a “drastic 8 remedy” as a TRO provides. 9 ACCORDINGLY, IT IS HEREBY ORDERED: 10 11 12 13 14 Plaintiff’s Motion for a Temporary Restraining Order (ECF No. 6) is DENIED. The District Court Executive is hereby directed to enter this Order and provide copies to counsel. DATED May 5, 2014. 15 16 THOMAS O. RICE United States District Judge 17 18 19 20 ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER ~ 22
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