Ninth Circuit Fails To Protect Tribal Sacred Sites

The Ninth Circuit Court of Appeals recently sustained the long-standing federal policy of subordinating Tribal sacred sites and culture to economic pursuits. The Te-Moak Tribe of Western Shoshone Indians of Nevada v. U.S. Department of the Interior decision highlights the general lack of enforceable protections codified in federal and state laws for Tribal cultural resources, and the inadequacy of President Clinton’s Executive Order 13007 in actually accomplishing what President Clinton ordered–that is, to “protect and preserve Indian religious practices.”

In the case, the Te-Moak Tribe among other Tribes and interested parties appealed the BLM’s approval of a plan to expand gold mining in and around traditional Native sacred sites where religious ceremonies are still held to this day.

The thrust of the Ninth Circuit’s recent holding is that E.O. 13007 “requires only that sacred sites be accommodated ‘to the extent practicable.’  [BLM] determined that further accommodation was not practicable given the lack of specificity as to location and as to the number of Tribal members who use any particular site on the pediment for religious activities.”

Finding no “arbitrary or capricious agency action,” the Ninth Circuit upheld the district court’s summary judgment against the Tribes and other appellants, paving the way for more mining and the destruction of Native American sacred sites.

The sole dissenter hit the nail on the head regarding the majority’s flawed and anti-Tribal reasoning that:

the analysis failed to recognize that comments regarding the proposal did point to the area where the mine is being built as an area in which worship occurs; it demanded quantification of that use as a condition of Executive Order coverage, when no such quantification is necessary; and it required greater specificity of location than comports with Shoshone religious practices. As to the last point, to require greater specificity would interfere with Shoshone religious practices, as those practices appear to regard certain recognized natural areas, rather than specific set locations, as places for worship.

In essence, without teeth (i.e. actual enforcement mechanisms and concrete directives to federal and state governmental agencies), all federal laws and executive orders purporting to “protect and preserve Indian religious practices” and cultural resources have no real authority to effect positive change and truly protect Tribes and their threatened cultures.   As such, Tribes must take a by-any-means-necessary approach to fending off government or private attacks upon Indian religious practices and ways of life.

The entire Ninth Circuit decision in Te-Moak may be found here.  E.O. 13007 may be found here.

Joe Sexton is Of Counsel with Galanda Broadman, PLLC.  Joe’s practice focuses on tribal sovereignty issues, including complex land and environmental issues, and economic development matters.  He can be reached at (509) 910-8842 and joe@galandbroadman.com.  

Federal Agency Violates NEPA During Elwha River Restoration

On March 26, 2014, the U.S. District Court for the Western District of Washington found that federal agencies violated the National Environmental Policy Act (“NEPA”) when they failed to adequately consider the impact of the release of hatchery fish on naturally spawning fish populations.  

Previously, the Elwha River was one of the most productive fish streams in the Northwest, producing nearly 400,000 spawning fish annually.  However, after the Elwha and Glines Canyon Dams were constructed, without fish passage structures, there was a decline to fewer than 3,000 naturally spawning fish.  As part of the Elwha River Restoration the federal government agreed to remove both dams.  (For more information on the Elwha River Restoration, click here.)

The dam removals required the preparation of certain environmental documents, including an Environmental Impact Statement (“EIS”), to determine the environmental effects of the project.  The EIS determined that the project would negatively impact fish populations and suggested that hatchery support would be needed to ensure the protection of fish stocks.

Based on the EIS, the federal government released an Environmental Assessment (“EA”).  The EA proposed releasing large quantities hatchery raised steelhead trout and coho salmon to supplement the fish population.  However, the large release would ensure that the majority of fish that would return to spawn would be hatchery fish.

Four fish conservancy groups filed suit against five federal agencies, seeking declaratory and injunctive relief.  The plaintiffs include the Federation of Fly Fishers Steelhead Committee, the Wild Fish Conservancy, the Wild Salmon Rivers, and the Wild Steelhead Coalition.  The defendants include the NOAA Fisheries Service, the National Park Service, the United States Department of Commerce, the United States Department of the Interior, and the United States Fish and Wildlife Service.

The court found that the agencies’ proposed quantities of hatchery fish were “arbitrary” and that the court found it “suspect” that the agencies did not consider smaller releases of hatchery fish.  The court found that the EA was inadequate and granted summary judgment to the plaintiffs on the issue.  Because of the deficiency of the EA, the court ordered the parties to meet and confer regarding the plaintiffs’ proposed release of a smaller number of hatchery fish.

The Lower Elwha Klallam Tribe was initially named as a defendant, but the court dismissed the Tribe from the case, based on a lack of subject matter jurisdiction.  The plaintiffs’ have stated that they support the Tribe’s right to harvest the coho salmon and steelhead trout. Additionally, the court found that decreasing the proposed releases of hatchery fish would not impact Treaty fishing rights, because there is a current moratorium on fishing, lasting through 2018 and after 2018, the Tribe agreed to base its catch on the number of returning fish.   The initial Hatchery and Genetic Management Plan was developed collaboratively with the Tribe. However, to ensure tribal interests are represented, the parties are obliged to consult with the Tribe as they meet and confer regarding the amount of fish to be released and as they draft new portions of the EA.

The cross-motions for summary judgment and the court order can be found here.

Amber Penn-Roco's practice focuses on complex land and environmental issues and multi-party litigation involving tribal sovereignty, torts and hazardous materials.  Amber is an enrolled member of the Chehalis Tribe.  She can be reached at (206) 713-0400 or amber@galandabroadman.com.