The Muckleshoot Indian Tribe sued the United States Forest Service (Forest Service) over its decision to implement a land exchange with Weyerhaeuser timber company on Huckleberry Mountain in the Mt. Baker-Snoqualmie National Forest. The Ninth Circuit reversed the district court, holding that the Forest Service failed to meet the requirements of the National Historic Preservation Act (NHPA)[1] and the National Environmental Policy Act (NEPA).[2] The court enjoined further timber operations on the lands pending the Forest Service's satisfaction of its NHPA and NEPA obligations.

In an attempt to consolidate land ownership in the area, the Forest Service and Weyerhaeuser negotiated the exchange pursuant to the Federal Land Policy and Management Act (FLPMA),[3] which authorizes the exchange of public lands.[4] The exchange anticipated a trade of publicly owned old growth forestlands for private lands that were heavily logged and dissected by logging roads. After signing a statement of intent and conducting a number of required environmental surveys, the Forest Service initiated a public comment period and developed a list of six alternatives for the project. The environmental impact statement (EIS) considered three alternatives, and the record of decision called for implementation of the exchange through a modification of "Alternative No. 3."

Members of the Muckleshoot Tribe have used Huckleberry Mountain for thousands of years for cultural, religious, and resource purposes. The lands involved in the exchange are part of the tribe's ancestral grounds. In addition, the Forest Service also exchanged to Weyerhaeuser intact portions of the Huckleberry Divide Trail--a trading route used for centuries by the tribe and its ancestors, which the Forest Service had found eligible for inclusion in the National Register of Historic Places. Weyerhaeuser intended to log the lands it received in the exchange.

After exhausting their administrative remedies, the tribe and two environmental organizations commenced separate actions (consolidated in this case) in district court. On appeal, the plaintiffs only retained their NHPA and NEPA claims. The Tribe's NHPA claims asserted that: 1) the Forest Service failed to consult adequately with the Tribe regarding the identification of traditional cultural properties, 2) the Forest Service inadequately mitigated the harmful impact of the exchange on sites of cultural significance, and 3) that the Forest Service violated the NHPA by failing to nominate certain sites to the National Register.

In terms of identification of traditional cultural lands, the regulations implementing the NHPA require that the agency consult with the State Historic Preservation Officer (SHPO), the Advisory Council on Historic Preservation, and the governing bodies of the affected Native American tribes.[5] The court found a Tenth Circuit case, Pueblo of Sandia v. United States,[6] to be instructive. In Pueblo of Sandia, the Tenth Circuit held that mailing a form letter to the Tribe that solicited information had not satisfied the agency's obligation under section 470f of the NHPA,[7] and that the agency had failed to perform the required "good faith consultation" with the SHPO.[8]

In the present case, the Forest Service performed some research on historic sites in the exchange area and communicated several times with Tribal officials regarding the identification and protection of cultural resources. After the Forest Service initially concluded that the Huckleberry Divide Trail was ineligible for listing on the National Register, but the SHPO suggested otherwise, the Forest Service reconsidered its decision and this time found the trail eligible. The Forest Service nevertheless included the trail in the lands to be exchanged. The Tribe argued that the Forest Service had also failed to consider the Tribe's claims that numerous other places of historic importance were situated in the exchange area. In response to these various claims, the Ninth Circuit determined that, although the agency "could have been more sensitive to the needs of the Tribe,"[9] the facts were not as egregious as those in Pueblo of Sandia. However, the court stated that because it was reversing the district court's decision on other grounds, the Forest Service would have an opportunity to re-open its investigation and evaluation of historic sites on Huckleberry Mountain.

The Ninth Circuit upheld the Tribe's second allegation under the NHPA--that the Forest Service failed to mitigate the harmful impacts of the exchange on sites of cultural significance. The NHPA regulations state that when an agency determines that certain lands are eligible for listing in the National Register, the agency must assess the effects of the proposed action on those lands and give consideration to the views of interested parties.[10] Further, an effect may be considered "adverse" when property is being transferred.[11] In order to mitigate an otherwise adverse effect, an agency may 1) conduct appropriate research in those situations where the property is only valued for its potential historic, archaeological, or architectural contributions,[12] or 2) include adequate restrictions or conditions that insure the preservation of a property's significant historic features when that property is valued for more than simply research potential.[13] The court concluded that the Forest Service's decision to simply document the trail did not satisfy the agency's obligations to minimize the adverse effects of the land transfer. The Forest Service bolstered this conclusion by admitting that previously logged portions of the trail had been "obliterated" and rendered ineligible for listing. Having decided that the Forest Service failed to meet its mitigation obligations under the NHPA, the court did not address the issue of the agency's failure to nominate the Huckleberry Divide Trail for the National Register.

The Plaintiffs also claimed under NEPA that 1) the Forest Service failed to consider the cumulative impacts of the proposed action, and 2) the EIS inadequately defined the purpose and need of the land exchange and did not identify or evaluate sufficient alternatives for the exchange. The Tribe's cumulative impacts argument emphasized that the Forest Service failed to consider the cumulative impacts of logging on a 1984 land exchange (Alpine Lakes Exchange), of existing logging and other disturbances in the watershed, and of a future land exchange in the same vicinity as the Plum Creek Timber Company (Interstate 90 Exchange). The court agreed, finding the cumulative impact statements provided in the EIS to be "far too general and one-sided to meet the NEPA requirements."[14] The court also rejected the Forest Service's claim that it had properly tiered the action to the Forest Plan because NEPA regulations only allow tiering to another EIS, not to a Forest Plan.[15] Moreover, even if the Forest Plan and other documents that the Forest Service pointed to were valid for tiering purposes, the court found that those documents were also far too broad and devoid of specific, reasoned conclusions.

Finally, the court rejected the Forest Service's argument that the Interstate 90 Exchange was too remote or speculative to be considered in a cumulative impacts analysis: a summary of that transaction had been prepared in 1995, and the Secretary of Agriculture had formally announced it to the public in 1996. The court therefore concluded that, "[i]n the absence of an EIS that takes into consideration the cumulative effects of the planned land sales and resultant environmental impacts, we cannot conclude that the Forest Service took the necessary 'hard look' at the cumulative environmental impacts of the Huckleberry Exchange."[16]

The court also agreed with plaintiffs' second NEPA argument that the EIS did not identify or evaluate sufficient alternatives for the exchange. After finding that the EIS's statement of purpose did in fact adequately make clear that the purpose of the exchange was to further the consolidation of land ownership in the area, the court considered the Forest Service's evaluation of alternatives. Only three alternatives were identified: a no action alternative and two others that differed only in that certain lands were relabeled as donations rather than exchanges and 141 acres of donated land were added in one specific alternative. While the court recognized that NEPA does not require an agency to examine every possible alternative to a proposed action (nor does it require an agency to examine alternatives that are unlikely to be implemented or inconsistent with its basic policy objectives), it nevertheless criticized the Forest Service's failure to retain at least one specific alternative that had been preliminarily eliminated from consideration. That alternative would have placed deed restrictions on the lands exchanged to Weyerhaeuser, so that the lands would have been subject to more stringent federal environmental standards.

In addition, the court suggested that the Forest Service could have considered exchange alternatives that modified the acreages involved in order to preserve the Divide Trail. Weyerhaeuser conceded at oral argument that deed restrictions would have been a viable alternative. The court also agreed with the plaintiffs that the Forest Service should have considered that the lands could have been purchased outright with funds from the Federal Land and Water Conservation Fund. That is, even though the Forest Service could not appropriate these funds itself, it could request them, and NEPA states that agencies must include reasonable alternatives that are not within the jurisdiction of the agency.

Finally, the court rejected a mootness argument from Weyerhaeuser. The company argued that the case was moot because the exchange had already occurred, the Plaintiffs had failed to obtain a stay on the district court's ruling, and the company had already begun logging. However, the Ninth Circuit stated, "[g]iven our reluctance to invoke the doctrine of mootness, the facts that the exchange has occurred and that Weyerhaeuser has begun to log pursuant to its state permits do not meet the 'heavy' evidentiary burden that a party must carry in order to establish mootness."[17] Along with its reversal of the district court's decision, the Ninth Circuit enjoined further activities on the lands affected by the Huckleberry Mountain Exchange until the Forest Service satisfied its NHPA and NEPA obligations.