Slockish v. United States Fed. Highway Admin.

682 F.Supp.2d 1178

Hereditary Chief Wilbur SLOCKISH, a resident of Washington, individually and as Hereditary Chief of the Klickitat/Cascade Tribe; The Klickitat/Cascade Tribe, a confederated tribe of the Yakama Indian Nation; Chief Johnny Jackson, a resident of Washington, individually and as Chief of the Cascade Tribe; The Cascade Tribe, a confederated tribe of the Yakama Indian Nation; Carol Logan, a resident of Oregon; Cascade Geographic Society, an Oregon nonprofit corporation; and Mount Hood Sacred Lands Preservation Alliance, an unincorporated nonprofit association, Plaintiff's,

v.UNITED STATES FEDERAL HIGHWAY ADMINISTRATION, an Agency of the Federal Government; United States Bureau of Land Management, an Agency of the Federal Government; Advisory Council on Historic Preservation, an Agency of the Federal Government; and Matthew Garrett, Director of the Oregon Department of Transportation, an Agency of the State of Oregon, Defendants.

No. 08-CV-1169-ST.

United States District Court, D. Oregon.

Jan. 27, 2010.

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James J. Nicita, Oregon City, OR, for Plaintiffs.

John Clinton Geil, Sarah D. Foreman, Matthew J. Donohue, Department of Justice, Salem, OR, for Defendants.

ORDER

BROWN, District Judge.

Magistrate Judge Janice M. Stewart issued Findings and Recommendation (# 48) on October 27, 2009, in which she recommended the Court grant Defendants' Motion (# 28) to Dismiss without prejudice Plaintiffs' Tenth, Eleventh, and Twelfth Claims. The Magistrate Judge also recommended the Court grant Defendants' Motion (#28) to Dismiss as to Plaintiffs Wilbur Slockish, Johnny Jackson, the Klickitat Tribe, and the Cascade Tribe for lack of standing.

Defendants filed timely Objections to the Findings and Recommendation. The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).

When any party objects to any portion of the Magistrate Judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1). See also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc); United States v.Bernhardt, 840 F.2d 1441, 1444 (9th Cir. 1988).

BACKGROUND

Plaintiffs allege Defendants violated federal statutes under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321, et seq. (1970); the National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470 et seq. (1994); and the Department of Transportation Act (DTA), 49 U.S.C. § 303 (1994), when they planned, approved, and constructed a highway-widening project (the Project) on Highway 26 in Oregon between the villages of Wildwood and Wemme near the town of Welches, Oregon. Plaintiffs allege in part that Defendants violated various statutory notice and process provisions when they prepared and undertook the Project without proper consideration of the impact on federally protected cultural, historical, and ecological resources. In their First Amended Complaint, Plaintiffs seek declaratory and injunctive relief, including "all other and further relief to which Plaintiffs may be entitled and which the Court may deem just and equitable."

DISCUSSION

Neither party raises any objection to the Magistrate Judge's recommendation that this Court dismiss Plaintiffs' Tenth, Eleventh, and Twelfth Claims or that the Court dismiss Plaintiffs Slockish, Jackson, the Cascade Tribe, and the Klickitat Tribe for lack of standing. Defendants, however, object to other aspects of the Magistrate Judge's Findings and Recommendation on two grounds: (1) the Court should dismiss this matter as moot and (2) Plaintiff Cascade Geographic Society (CGS) lacks standing to challenge Defendants' actions in this matter.

I. Mootness.

Defendants object to the Findings and Recommendation and assert that Plaintiffs' claims are moot on two bases: (1) the fact that the Project is nearly complete, and, therefore, this Court arguably cannot provide any effective relief to Plaintiffs and (2) the Court cannot order the completed highway widening project to be "undone." Although Plaintiffs contend Defendants' Objections are "new," they are, in fact, essentially the same as the arguments they made in the Memorandum in Support of their Motion and their Reply but with additional authorities cited to support them.

The Magistrate Judge addressed Defendants' mootness arguments at length in the Findings and Recommendation and concluded Defendants "failed to meet their burden to show that this case is moot." Although the Magistrate Judge did not explicitly include in her Recommendation that this Court deny Defendant's Motion to Dismiss all of Plaintiffs' claims as moot, the Court construes the Magistrate Judge's discussion of this issue and conclusion as part of the Recommendation and, accordingly, reviews it de novo.

A. Court's Authority under the Administrative Procedures Act (APA) to Remedy Violations of Public Law by Government Agencies.

The Magistrate Judge found the Administrative Procedures Act (APA), 5 U.S.C. §§ 701-706 (2006), governs the Court's review of Plaintiffs' claims under NEPA, NHPA, and DTA. The APA permits the Court to "hold unlawful and set aside agency action, findings and conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2). See, e.g., N. Idaho Cmty. Action Networkv. U.S. Dep't of Transp., 545 F.3d 1147, 1152 (9th Cir.2008) (APA governs the court's review under NEPA and the DTA § 303); San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1098-99 (9th Cir.2005) (APA governs the court's review under § 106 of the NHPA). The Magistrate Judge also concluded § 706(2) of the APA confers broad equitable authority on courts to remedy violations of public law by governmental agencies. See, e.g., Northwest Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 689-71 (9th Cir.2007) (When "the public interest is involved, 'equitable powers assume an even broader and more flexible character than when only a private controversy is at stake.' "Xciting United States v. Alisal Water Corp., 431 F.3d 643, 654 (9th Cir. 2005)); Tinoqui-Chalola Council of Kita-nemuk and Yowlumne Tejon Indians v. US. Dep't of Energy, 232 F.3d 1300, 1305 (9th Cir.2000)(the court retains "broad discretion to fashion equitable remedies" under APA § 706(2)). This Court agrees.

B. Plaintiff's Claims Are Not Moot Because the Court Can Provide Plaintiffs with an Effective Remedy.

As the Magistrate Judge stated, the bar for establishing mootness in the Ninth Circuit is high. See, e.g., Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir.2001) ("[Defendants in NEPA cases face a particularly heavy burden in establishing mootness."). Thus, a claim is not moot if "any effective relief may be provided. See Tinoqui-Chalola Council, 232 F.3d at 1305. See also Northwest Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244-45 (9th Cir.l988)("[T]he question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective re- lief.")(quoting Garcia v. Lawn, 805 F.2d 1400, 1403 (9th Cir.l986)(emphasis in original)).

The Magistrate Judge pointed out the Ninth Circuit has held the fact that a challenged project is completed during litigation does not necessarily moot a Plaintiff's challenge to the process an agency undertook to approve a project, particularly when there is an ongoing harm to the Plaintiff's interests. See, e.g., Cantrell, 241 F.3d at 678 (destruction of the building the Plaintiff's sought to enjoin did not moot the Plaintiff's' case because additional study by the defendants could have led to remedial actions to mitigate alleged harm to birds); Gordon, 849 F.2d at 1244-45 (end of 1986 fishing season did not moot challenge to fishing regulations because additional study might dictate defendants should take mitigating actions in subsequent fishing seasons).

The Magistrate Judge also found ongoing harm to Plaintiff's' interests in cultural and historical assets that may remain in the Project area. The Magistrate Judge also set out several potential avenues of relief this Court might order to remedy any violation of the law by Defendants such as an order for "defendants to carry out additional review of the alleged cultural and historical resources in the project area in compliance with the NHPA, NEPA, and [DTA]." Moreover, the Magistrate Judge concluded the Court could enjoin future work on the Project, order removal of offending portions of the Project, or order mitigation of the harm to cultural resources such as monuments or markers. The Magistrate Judge, therefore, concluded the Court could provide some form of effective relief to Plaintiff's if the Court determines Defendants violated the law.

Defendants, nonetheless, maintain there is not any ongoing harm to Plaintiff's' interests that could be remedied by this Court. In particular, Defendants contend the Project is nearly complete and all of the damage that could have been done has been done. Defendants rely on cases in which a completed mining or culling project was sufficient to moot challenges to those projects. See, e.g., Feldman v. Bo-mar, 518 F.3d 637 (9th Cir.2008)(complet-ed culling of feral pigs mooted humane group's challenge to the plan); Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir.l988)(completed mining project mooted challenge to stop mining because the court could not order the mine to be "un-mined."). Plaintiff's, however, point out that here cultural and historical artifacts such as burial grounds, historic buildings, and trails may have been disturbed or paved over, and, as the Magistrate Judge noted, interests in these artifacts are distinguishable from interests in living things or resources that have been removed or killed and cannot be restored. In any...