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Confederated Tribes & Bands of the Yakama Nation v. United States Fish & Wildlife Serv.

United States District Court, E.D. Washington

May 5, 2014

CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION, Plaintiff,
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, Defendants

Page 1115

For Confederated Tribes and Bands of The Yakama Nation, Plaintiff: Thomas Andrew Zeilman, Law Offices of Thomas Zeilman, Yakima, WA.

For United States Fish and Wildlife Service, Defendant: Vanessa Ruth Waldref, LEAD ATTORNEY, U S Attorney's Office - SPO, Spokane, WA.

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ORDER DENYING PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER

THOMAS O. RICE, United States District Judge.

BEFORE THE COURT is Plaintiff's Motion for a Temporary Restraining Order (ECF No. 6). This matter was heard with oral argument on May 5, 2014. Thomas A. Zeilman appeared on behalf of Plaintiff. Vanessa R. Waldref appeared on behalf of Defendants. The Court has reviewed the briefing and the record and files herein, and is fully informed. This Order memorializes and supplements the Court's oral ruling.

BACKGROUND

This case concerns guided bus tours for members of the general public on Rattlesnake Mountain in the Hanford Reach National Monument conducted bye Defendant United States Fish and Wildlife Services (" USFWS" ). Plaintiff Confederated Tribes and Bands of the Yakama Nation (" the Yakama Nation" ) seeks judicial review of the USFWS's agency decision and actions that the guided tours will have no adverse effect on the site, which has been designated a Traditional Cultural Property (" TCP" ) under the National Historic Preservation

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Act (" NHPA" ). In the motion now before the Court, Plaintiff seeks a temporary restraining order (" TRO" ) prohibiting the two remaining scheduled bus tours in 2014. For the reasons explained below, the Court denies Plaintiff's motion.

FACTS [1]

The Yakima Nation is a federally recognized Indian Tribe. Defendant USFWS is responsible for administration and management of certain federally owned lands, including those lands comprising the National Wildlife Refuge system and Hanford Reach National Monument. Defendant Robyn Thorson is the Regional Director of the Pacific Region of the USFWS and is named in her official capacity. Defendant Charles Stenvall is the Manager of the USFWS Mid-Columbia National Wildlife Refuge Complex and is named in his official capacity. Defendant Larry Klimek is the USFWS Manager of the Hanford Reach National Monument and is named in his official capacity.

Rattlesnake Mountain, overlooking the Hanford Site in Benton County, Washington, is known to the Yakama Nation as Laliik, and means " standing above the water." Laliik has cosmological, religious, and cultural significance for the Yakama Nation and other Indian tribes. The Yakama Nation ceded the land on which Laliik is situated to the United States under the Treaty of 1855. From 1943 through 1987, the United States used the area as a buffer zone for the Hanford Site. In 1967, the Atomic Energy Commission formally designated the western sector of the Hanford Site, including Laliik, as the Arid Lands Ecology Reserve (" ALE" ). In 1977, the Department of Energy took control of the Hanford site, including ALE. In 1997, administration and management of the mountain was transferred to USFWS, and it was subsequently included in the Saddle Mountain National Wildlife Refuge. Ultimately, the area was included in the Hanford Reach National Monument, pursuant to the Antiquities Act of 1906. In 2007, Laliik was designated as a Traditional Cultural Property (" TCP" ) pursuant to § 101(d)(6)(A) of the National Historic Preservation Act (" NHPA" ). A TCP is a " property of traditional religious and cultural importance to an Indian tribe" and is thereby eligible for listing on the National Register of Historic Places.

USFWS has maintained the public access restriction to the area that began in 1943 when the military and later the Department of Energy managed the area, using fences, locked gates, and policy to restrict access to authorized uses, according to the June 2012 report on wildflower tours. ECF No. 21-1 at 8.

On February 17, 2012, USFWS emailed the Yakama Nation with a request for a review of a proposed undertaking pursuant to § 106 of the NHPA. The undertaking consisted of two three-hour guided bus tours on one day on Laliik for the public to view the spring wildflowers. On March 13, 2012, the Yakama Nation responded that it did not concur under the NHPA. On April 26, 2012, USFWS issued a finding that the wildflower tours presented " no adverse effect" on the Laliik TCP. On April 30, 2012, State Historic Preservation Officer Allyson Brooks notified the USFWS that she did not concur with the finding of no adverse effect. On May 1, 2012, USFWS sent a cultural review of the wildflower tours to the State Historical Preservation Office and Yakama Nation

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for comment, documenting the finding of no adverse effect and stating that " as a potential threat to the integrity of Laliik's feeling and association, the wildflower tour is fleeting."

On June 7, 2012, USFWS notified the Yakama Nation that it was expanding the proposal for future wildflower tours at the Laliik TCP to six tour days per year (two tours per day) for the next five years. The § 106 review contained the same information regarding potential effects and the same finding of no adverse effect. USFWS informed the Tribe that it would have the Advisory Council on Historic Preservation review the new proposal because the Tribe and the State Historical Preservation Office had not concurred with the USFWS. On December 6, 2012, the Tribe told the ACHP that it did not concur with the new tours proposal. On December 28, 2012, the ACHP gave the USFWS detailed comments on a proposed elk hunt on Laliik, but did not comment on the wildflower tours. It did, however, specify the need to manage all projects on the TCP to mitigate adverse effects.

On January 17, 2013, Defendant Robyn Thorson met with the Yakama Tribal Council regarding a number of matters; consultation for the wildflower tours was scheduled for that meeting, but the discussion did not take place due to time constraints.

On February 13, 2013, USFWS told the Chairman of the Tribal Council that USFWS had met its NHPA § 106 consultation obligations and would proceed with the wildflower tours in May 2013, managed in a way that would produce " no adverse effect."

On March 26, 2013, a representative from the Yakama Nation met with Charles Stenvall and Larry Klimek and expressed that the Tribe objected to the expanded wildflower tours. Defendants reiterated to him that USFWS had met all NHPA obligations and were proceeding with the wildflower tours. The Tribe again objected to the finding of no adverse effect in a letter to the Acting Assistant Interior Secretary for Fish and Wildlife and Parks. In response, Acting Assistant Secretary Jacobson stated that USFWS had met all NHPA § 106 obligations and that there would be no adverse effect if all work controls and project modifications were followed.

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 ...


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