Petition for Writ of Certiorari — Wilbur Slockish, et al., Petitioners v. Department of Transportation, et al.

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Filed Nov 24, 2021

Molly C. Dwyer, Clerk

U.S. Court of Appeals

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILBUR SLOCKISH,

Hereditary Chief of the

Klickitat/Cascade Tribe;

CAROL LOGAN, a

resident of Oregon, and an

enrolled member of the

Confederated Tribes of the

Grand Ronde; CASCADE

GEOGRAPHIC SOCIETY,

an Oregon

nonprofit corporation;

MOUNT HOOD SACRED

LANDS PRESERVATION

ALLIANCE, an

unincorporated nonprofit

association,

No. 21-35220

D.C. No. 3:08-cv-01169YY

MEMORANDUM*

Plaintiffs-Appellants,

v.

U.S. DEPARTMENT OF

TRANSPORTATION;

FEDERAL HIGHWAY

This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

*

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ADMINISTRATION, an

Agency of the Federal

Government; U.S.

DEPARTMENT OF THE

INTERIOR; BUREAU OF

LAND MANAGEMENT,

an Agency of the Federal

Government; ADVISORY

COUNCIL ON HISTORIC

PRESERVATION, an

Agency of the Federal

Government,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Marco A. Hernandez, Chief District Judge, Presiding

Argued and Submitted November 16, 2021

San Francisco, California

Before:

SCHROEDER, W.

MILLER, Circuit Judges.

FLETCHER,

and

Plaintiffs Hereditary Chief Wilbur Slockish, Carol

Logan, Cascade Geographic Society, and Mount Hood

Sacred Lands Preservation Alliance appeal from the

district court’s grants of summary judgment to

Defendants

United

States

Department

of

Transportation, Federal Highway Administration

(“FHWA”), United States Department of the Interior,

Bureau of Land Management (“BLM”), and Advisory

Council on Historic Preservation.

Plaintiffs allege that Defendants’ actions with

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respect to a 0.74-acre site located within a highway

expansion project completed by the Oregon

Department of Transportation (“ODOT”) violated the

Religious Freedom Restoration Act, the Free Exercise

Clause of the First Amendment, the National

Environmental Policy Act, the National Historic

Preservation Act, the Federal Land Policy and

Management Act, and Section 4(f) of the Department

of Transportation Act. We conclude that this appeal

is moot and that we therefore lack jurisdiction.

“The case or controversy requirement of Article

III . . . deprives federal courts of jurisdiction to hear

moot cases.” Native Vill. of Nuiqsut v. BLM, 9 F.4th

1201, 1208 (9th Cir. 2021) (quoting NAACP, W.

Region v. City of Richmond, 743 F.2d 1346, 1352 (9th

Cir. 1984)). “A case becomes moot only when it is

impossible for a court to grant any effectual relief

whatever to the prevailing party.” Knox v. Serv.

Emps. Int’l Union, Loc. 1000, 567 U.S. 298, 307

(2012) (citation and quotations omitted). A case is not

moot if “there can be any effective relief.” Wild

Wilderness v. Allen, 871 F.3d 719, 724 (9th Cir. 2017)

(emphasis in original) (quoting Or. Nat. Res. Council

v. BLM, 470 F.3d 818, 820 (9th Cir. 2006)).

ODOT, which owns the right-of-way for the

highway that encompasses the site, was dismissed

from this case in 2012 based on Eleventh

Amendment immunity. The remaining Defendants

are federal agencies that cannot order the outright

removal of the challenged highway expansion. The

district court concluded that the court could

nonetheless “craft some relief that would mitigate

Plaintiffs’ injury.” Plaintiffs specifically identify the

relief that they seek. That relief falls short of

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removing the highway expansion, but it contemplates

restoration of highway access to E. Wemme Trail

Road, replacement of vegetation, reconstruction of the

rock pile, removal of the sloped earthen embankment

over the site, and removal of the guard rail. This

relief would partially restore the site to the status

quo ante, but this relief would make changes to

aspects of the highway project that ODOT designed

and implemented based on its judgment that those

aspects improved highway safety. Because ODOT

has been dismissed from this suit, none of the

Defendants has authority to make the changes sought

by Plaintiffs.

Pursuant to an easement previously granted by

FHWA, ODOT owns a right-of-way easement over

BLM land. The easement encompasses the entire site

of the highway widening project. The easement

reserves limited rights for BLM to use or authorize

the use of the highway for non-highway purposes, but

it expressly precludes BLM from doing so when it

would “impair the full use and safety of the highway”

or would otherwise be “inconsistent with the

provisions of Title 23 of the United States Code.”

The language of the easement, in combination

with ODOT’s dismissal, renders the case moot. All of

the relief sought by Plaintiffs implicates highway

safety. As ODOT and FHWA explain in the

Environmental Assessment, the removal of highway

access to E. Wemme Trail Road, the removal of

vegetation and the rock pile, the addition of the

earthen embankment, and the addition of the guard

rail were all conducted for the purpose of improving

the safety of the highway. As a result, BLM’s limited

reservation of rights to use or authorize the use of the

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highway for non-highway purposes would not permit

it to undo those actions.

Plaintiffs’ claims for declaratory relief are also

moot. Declaratory relief must correspond with a

separate remedy that will redress Plaintiffs’ injuries.

California v. Texas, 141 S. Ct. 2104, 2115-16 (2021)

(explaining that the Declaratory Judgment Act “alone

does not provide a court with jurisdiction,” and that

courts must “look elsewhere to find a remedy that

will redress plaintiffs’ injuries”). “[A] declaratory

judgment may not be used to secure judicial

determination of moot questions.” Nome Eskimo

Cmty. v. Babbitt, 67 F.3d 813, 816 (9th Cir. 1995)

(quotations omitted) (quoting Native Vill. of Noatak,

38 F.3d 1505, 1514 (9th Cir. 1994)). Plaintiffs’ claims

for declaratory relief that correspond to their claims

for injunctive relief are therefore moot.

Plaintiffs’ claim for damages is barred by federal

sovereign immunity. See Price v. United States, 174

U.S. 373, 375-76 (1899).

Because we cannot order any effective relief, this

appeal is moot. Although Defendants’ “burden of

demonstrating mootness is a heavy one,” that burden

is carried here. Nw. Env’t Defense Ctr. v. Gordon, 849

F.2d 1241, 1244 (9th Cir. 1988) (citing Cnty. of Los

Angeles v. Davis, 440 U.S. 625, 631 (1979)).

DISMISSED.

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

HEREDITARY CHIEF WILBUR

SLOCKISH, a resident of

Washington, and an enrolled

member of the Confederated

Tribes and Bands of Yakama

Nation, et al.,

Case No. 3:08cv-01169-YY

ORDER

Plaintiffs,

v.

UNITED STATES FEDERAL

HIGHWAY ADMINISTRATION,

an Agency of the Federal

Government, et al.,

Defendants.

HERNÁNDEZ, District Judge:

Magistrate Judge Youlee Yim You issued a

Findings and Recommendation on April 1, 2020, in

which she recommends that this Court grant

Defendants’ motion for relief from LR 56- 1(B) and to

strike extra-record materials, grant Defendants’

motion

for

summary

judgment,

and

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deny Plaintiffs’ motion for summary judgment. F&R

82, ECF 348. The matter is now before the Court

pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal

Rule of Civil Procedure 72(b).

Plaintiff filed timely objections to the Magistrate

Judge’s Findings & Recommendation. Pl. Obj., ECF

350. When any party objects to any portion of the

Magistrate Judge’s Findings & 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); Dawson v. Marshall, 561 F.3d 930,

932 (9th Cir. 2009); United States v. Reyna-Tapia,

328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

Plaintiffs object to the Magistrate Judge’s

conclusion that the doctrine of laches bars Plaintiffs’

claims under the National Environmental Policy Act

(“NEPA”), the National Historic Preservation Act

(“NHPA”), the Federal Land Policy and Management

Act

(“FLPMA”),

and

the

Department

of

Transportation Act (“DTA”). First, Plaintiff argues

that Defendants waived the defense of laches by

failing to plead it in their answer. Pl. Obj. 11. The

Court need not address this question because the

doctrine of laches does not apply. The Supreme Court

has held that the doctrine of laches does not bar a

suit filed within an applicable federal statute of

limitations. SCA Hygiene Prods. Aktiebolag v. First

Quality Baby Prods., LLC, 137 S. Ct. 954, 960 (2017)

(reasoning that “applying laches within a limitations

period specified by Congress would give judges a

‘legislation-overriding’ role that is beyond the

Judiciary’s power”). As a result, the Court declines to

adopt Magistrate Judge You’s finding that laches

bars Plaintiffs’ claims.

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The Court has carefully considered Plaintiffs’

other objections and concludes that there is no basis

to modify the remainder of the Findings &

Recommendation. The Court has also reviewed the

pertinent portions of the record de novo and finds no

error in the remainder of the Magistrate Judge’s

Findings & Recommendation.

CONCLUSION

The Court ADOPTS IN PART Magistrate Judge

You’s Findings and Recommendations [348]. The

Court DECLINES TO ADOPT Magistrate Judge

You’s finding that Plaintiffs’ NEPA, NHPA, FLPMA,

and DTA claims are barred by the doctrine of laches.

The Court ADOPTS the remainder of Judge You’s

Findings and Recommendations. Defendants’ Motion

to Strike Extra-Record Materials [339] is GRANTED.

Plaintiffs’ Motion for Summary Judgment [331] is

DENIED. Defendants’ Cross Motion for Summary

Judgment [340] is GRANTED. Accordingly, this case

is dismissed with prejudice.

IT IS SO ORDERED.

DATED: February 21, 2021.

/s/ Marco A. Hernández

MARCO A. HERNÁNDEZ

United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

HEREDITARY CHIEF

WILBUR SLOCKISH,

et al.,

Case No. 3:08-cv-01169YY

Plaintiffs,

FINDINGS AND

RECOMMENDATIONS

v.

UNITED STATES

FEDERAL HIGHWAY

ADMINISTRATION, et

al.,

Defendants.

YOU, Magistrate Judge:

This action concerns a highway-widening project in

Oregon along Mount Hood Highway No. 26 between

the communities of Wildwood and Wemme, about 43

miles east of Portland.

Plaintiffs are Hereditary Chief Wilbur Slockish,

Hereditary Chief Johnny Jackson, Carol Logan, the

Cascade Geographic Society, and the Mount Hood Sacred Lands Preservation Alliance (collectively “plaintiffs”). Defendants are three federal agencies: the Federal Highway Administration, the Bureau of Land

Management, and the Advisory Council on Historic

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Preservation (collectively “defendants”). Other defendants, the Oregon Department of Transportation

(“ODOT”) and its Director, were dismissed from this

action after invoking sovereign immunity in late 2011.

Findings and Recommendations 20, ECF #122,

adopted by Opinion and Order 13, ECF #131. However, the court imputes ODOT’s actions to defendants

because they maintain the obligation to “fulfill the requirements of section 106” regardless if a state government official “has been delegated legal responsibility

for compliance.” 36 C.F.R § 800.2.

Plaintiffs’ Fourth Amended Complaint alleges

twelve claims under the National Environmental Policy Act of 1970 (“NEPA”), 42 U.S.C. § 4321 et seq., the

National Historic Preservation Act of 1966 (“NHPA”),

54 U.S.C. § 300101 et seq., the Federal Land Policy and

Management Act of 1976 (“FLPMA”), 43 U.S.C. § 1701

et seq., the Department of Transportation Act of 1966

(“DTA”), 49 U.S.C. § 303 et seq., the Native American

Graves Protection and Repatriation Act (“NAGPRA”),

25 U.S.C. § 3001 et seq., the Archeological Resources

Protection Act (“ARPA”), 16 U.S.C. § 470aa et seq., the

Religious Freedom Restoration Act of 1993 (“RFRA”),

42 U.S.C. § 2000bb et seq., the Free Exercise Clause,

U.S. CONST. amend. I, and the Due Process Clause,

U.S. CONST. amend. V. Fourth Am. Complaint, ECF

#223. The court dismissed the RFRA claim in 2018.

Order 2, ECF #310.

Before the court are cross-motions for summary

judgment (ECF ##331, 340) and defendants’ motions

for relief from Local Rule 56-1(B) and to strike extrarecord materials (ECF #339). For the reasons set forth

below, defendants’ motions for relief from Local Rule

56-1(B) and to strike extra-record materials should be

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granted, their motion for summary judgment should

be granted, plaintiffs’ motion for summary judgment

should be denied, and this action should be dismissed

with prejudice.

I. Statutory Framework

A. National Environmental Policy Act

NEPA “is our basic national charter for protection

of the environment.” 40 C.F.R. § 1500.1(a).1 The statute’s purpose is twofold: “(1) to ensure that agencies

carefully consider information about significant environmental impacts and (2) to guarantee relevant information is available to the public.” N. Plains Res.

Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067,

1072 (9th Cir. 2011) (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). To these

ends, “NEPA imposes procedural requirements designed to force agencies to take a ‘hard look’ at environmental consequences.” Lands Council v. Powell,

395 F.3d 1019, 1027 (9th Cir. 2005) (citation omitted).

NEPA does not mandate “substantive outcomes.” Id.

at 1026.

Before taking “major Federal actions significantly

affecting the quality of the human environment,” 42

U.S.C. § 4332(2)(C), agencies must either prepare an

environmental assessment (“EA”) or an environmental

impact statement (“EIS”). 40 C.F.R. § 1501.3(a), 4(a)–

Federal regulations interpreting NEPA are “binding on federal agencies and are given substantial deference by courts.”

Natl. Wildlife Fedn. v. Natl. Marine Fisheries Serv., 184 F. Supp.

3d 861, 879 n.39 (D. Or. 2016) (citations omitted).

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(c). 2 The EA must provide sufficient evidence and

analysis for determining whether to prepare an EIS or

a finding of no significant impact (“FONSI”). An EA

must “include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E),

of the environmental impacts of the proposed action

and alternatives, and a listing of agencies and persons

consulted.” 40 C.F.R. § 1508.9(b). An EIS must “[r]igorously explore and objectively evaluate all reasonable

alternatives” to the government action. 40 C.F.R. §

1502.14(a). “The analysis of alternatives to the proposed action is the ‘heart of the environmental impact

statement.’” Ctr. for Biological Diversity v. U.S. Dep’t

of Interior, 623 F.3d 633, 642 (9th Cir. 2010) (quoting

Oregon Nat. Desert Ass’n v. Bureau of Land Mgmt.,

531 F.3d 1114, 1121 (9th Cir. 2008)).

B. National Historic Preservation Act

The overarching purpose of NHPA is to “foster conditions under which our modern society and our historic property can exist in productive harmony.” 54

U.S.C. § 300101(1). 3 “Like NEPA, ‘[s]ection 106 of

NHPA is a “stop, look, and listen” provision that requires each federal agency to consider the effects of its

programs.’” Te-Moak Tribe of W. Shoshone of Nevada

v. U.S. Dept. of Int., 608 F.3d 592, 607 (9th Cir. 2010)

(quoting Muckleshoot Indian Tribe v. U.S. Forest

See also 40 C.F.R. § 1502.1 (describing purpose of EIS), §

1508.9 (defining EA), § 1508.11 (defining EIS), § 1508.13 (defining FONSI).

2

“The requirements of section 306108 of title 54 are commonly

referred to as section 106 requirements (see section 106 of the

National Historic Preservation Act of 1966 (Public Law 89- 665;

80 Stat. 917) as in effect before the repeal of that section).” 49

U.S.C. § 303(f)(2).

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Serv., 177 F.3d 800, 805 (9th Cir. 1999)) (alteration in

original); 36 C.F.R. § 800.8 (encouraging agencies to

coordinate NEPA and NHPA compliance). The statute

thus requires federal agencies to “make a reasonable

and good faith effort” to identify historic properties

“within the area of potential effects” of an undertaking

by, in part, consulting with Indian tribes4 and various

preservation officers, 36 C.F.R. §§ 800.3(e), 4(b),

4(b)(1), and provide interested members of the public

reasonable opportunity to comment. Id. §§ 800.1(a),

800.2(a)(4), (d)(1).

If historic properties may be affected by an undertaking, the agency must notify all consulting parties

and invite their views. Id. § 800.4. If an adverse effect

is found, the agency must continue to work with consulting parties to evaluate alternatives to “avoid, minimize, or mitigate”—and ultimately resolve—adverse

effects on the historic property. Id. §§ 800.5(d)(2),

800.6(a), 800.7. The Advisory Council on Historic

Preservation (“ACHP”) may issue an advisory opinion

for an individual undertaking “regarding the substance of any finding, determination or decision or regarding the adequacy of the agency official’s compliance” with Council procedures. Id. § 800.9(a).

Tribal consultation duties were imposed by amendment in

1992. See National Historic Preservation Act Amendments of

1992, Pub. L. No. 102-575, 106 Stat. 4753 (1992). “‘Indian tribe’

means an Indian tribe, band, nation, or other organized group or

community, including a Native village, Regional Corporation or

Village Corporation (as those terms are defined in section 3 of the

Alaska Native Claims Settlement Act (43 U.S.C. 1602)), that is

recognized as eligible for the special programs and services provided by the United States to Indians because of their status as

Indians.” 54 U.S.C. § 300309.

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C. Federal Land Policy and Management Act

With the passage of FLPMA in 1976, Congress established a policy in favor of retaining ownership of

public lands, “unless as a result of the land use planning procedure provided for in this Act, it is determined that disposal of a particular parcel will serve

the national interest.” 43 U.S.C. § 1701(a)(1). The Bureau of Land Management (“BLM”) must manage public lands “on the basis of multiple use and sustained

yield.” 43 U.S.C. § 1701(a)(7). “‘Multiple use management’ describes the enormously complicated task of

striking a balance among the many competing uses to

which land can be put, ‘including, but not limited to,

recreation, range, timber, minerals, watershed, wildlife and fish, and [uses serving] natural scenic, scientific and historical values.’” Norton v. S. Utah Wilderness All., 542 U.S. 55, 58 (2004) (quoting 43 U.S.C. §

1702(c)) (alteration in original). “‘Sustained yield[]’ requires BLM to control depleting uses over time, so as

to ensure a high level of valuable uses in the future.”

Id. (citing 43 U.S.C. § 1702(h)). To these ends, FLPMA

directs BLM to “develop, maintain, and, when appropriate, revise land use plans . . . for the use of the public lands.” 43 U.S.C. § 1712(a); see also id. § 1712(c)

(providing criteria for development and revision of

land use plans).

D. Department of Transportation Act

Congress passed DTA in 1966 to effectuate its policy that “special effort should be made to preserve the

natural beauty” of public lands. 49 U.S.C. § 303(a).

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Section 4(f)5 of the DTA thus “imposes a substantive

mandate,” N. Idaho Community Action Network v.

U.S. Dept. of Transp., 545 F.3d 1147, 1158 (9th Cir.

2008), that “[s]ubject to subsections (d) and (h), the

Secretary [of Transportation] may approve a transportation program or project . . . only if (1) there is no prudent and feasible alternative to using that land; and

(2) the program or project includes all possible planning to minimize harm to the park, recreation area,

wildlife and waterfowl refuge, or historic site resulting

from the use.” 49 U.S.C. § 303(c). Subsection (d) provides for an exception to this mandate for de minimis

impacts, including de minimis impacts to historical

sites. See id. §§ 303(d)(1)–(2).

E. Native American Graves Protection and

Repatriation Act

NAGPRA provides for the inventory and repatriation of Native American cultural items—i.e., human

remains, associated and unassociated funerary objects, sacred objects, and objects of cultural patrimony

(25 U.S.C. §§ 3001(3))—from federally funded museums and institutions to lineal descendants or the Indian tribe or Native Hawaiian organization with the

strongest cultural affiliations. See generally 25 U.S.C.

§§ 3001–05; 43 C.F.R. §§ 10.1–.17. It also provides for

the protection of American Cultural items during intentional excavation and inadvertent discovery after

November 16, 1990. 25 U.S.C. §§ 3002(a), (c)–(d); see

also 43 C.F.R. §§ 10.3–.4. NAGPRA requires persons

“The requirements of this section are commonly referred to

as section 4(f) requirements (see section 4(f) of the Department of

Transportation Act (Public Law 89-670; 80 Stat. 934) as in effect

before the repeal of that section).” 49 U.S.C. § 303(f)(1).

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who know, or have reason to know, that they have discovered Native American cultural items on federal

land to “cease [construction] in the area of discovery,

make a reasonable effort to protect the items discovered before resuming such activity,” and notify the

agency managing the land and the appropriate Indian

tribe. 25 U.S.C. § 3002(d)(1).

II. Standard of Review

“In reviewing an administrative agency decision,

summary judgment is an appropriate mechanism for

deciding the legal question of whether the agency

could reasonably have found the facts as it did.” City

& County of San Francisco v. U.S., 130 F.3d 873, 877

(9th Cir. 1997). Judicial review of agency action is governed by the Administrative Procedure Act (“APA”). 5

U.S.C. § 706. Under the APA, the “reviewing court

shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance

with law.” 5 U.S.C. § 706(2)(A). “A decision is arbitrary

and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to

consider an important aspect of the problem, or offered

an explanation that runs counter to the evidence before the agency or is so implausible that it could not be

ascribed to a difference in view or the product of

agency expertise.” Lands Council v. McNair, 629 F.3d

1070, 1074 (9th Cir. 2010) (citation omitted).

“This standard of review is ‘highly deferential, presuming the agency action to be valid and affirming the

agency action if a reasonable basis exists for its decision.’” Natl. Mining Assn. v. Zinke, 877 F.3d 845, 866

(9th Cir. 2017) (quoting Nw. Ecosystem Alliance v.

U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th

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Cir. 2007)); San Luis & Delta-Mendota Water Auth. v.

Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (“the agency’s

decision is entitled to a presumption of regularity”).

The court’s role is simply to ensure that the agency

made no “clear error of judgment” that would render

its action arbitrary and capricious. Friends of Santa

Clara River v. U.S. Army Corps of Engineers, 887 F.3d

906, 920–21 (9th Cir. 2018). The Ninth Circuit requires only a rational connection between the agency’s

factual findings and conclusions. Id. “[A] court is not

to substitute its judgment for that of the agency, and

should uphold a decision of less than ideal clarity if the

agency’s path may reasonably be discerned.” FCC v.

Fox Television Stations, Inc., 556 U.S. 502, 513–14

(2009) (internal citations and quotation marks omitted). Nevertheless, a reviewing court must engage in a

“substantial inquiry,” i.e., a “thorough, probing, indepth review” of the challenged action. Locke, 776 F.3d

at 992.

III.

Factual Background

This section includes relevant information regarding prior highway-widening projects in the late 1980s

and ‘90s, the Wildwood to Wemme project at issue

here, and plaintiffs, as they became involved in challenging the projects. The information is derived from

the administrative record 6 and the limited parts of

The administrative record is comprised of 6,977 pages of documents (ECF #85) and 615 pages of sealed documents (ECF #86)

from FHWA, 184 pages from ACHP, 141 pages from BLM (see

ECF #85), and 124 pages of supplemental documents (ECF #90).

This opinion omits the underscore and leading zeroes to bates

stamps in the administrative record. For example, the citation

FHWA 4957 represents bates stamp FHWA_004957, and ACHP

2 represents ACHP_000002.

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plaintiffs’ extra-record evidence entitled to consideration, as explained infra Section VI.B. The United

States owns, and BLM manages, the land under

Mount Hood Highway No. 26 (“US 26” or “the highway”). ODOT owns the right of way for the highway.

A. Wildwood to Rhododendron project

In 1984, ODOT began planning to expand US 26

from Wildwood to Rhododendron to increase traffic capacity during the ski season, weekends, and holidays.

FHWA 60, 319; see also FHWA 273 (summarizing

technical advisory meetings in Draft EIS).

FHWA 188 (map of project area in Draft EIS).

ODOT sought public input, including from a citizen

advisory committee. FHWA 274–76 (summarizing

notes from eight meetings with the committee from

January to August 1984). ODOT also conducted archeological surveys and issued cultural resources reports.

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ODOT sent Archeologist Richard M. Pettigrew

(“Pettigrew”) to conduct a field survey of the project

area in April 1985. FHWA 159. His survey revealed no

evidence of prehistoric sites, FHWA 162, but noted

three historic features: a probable segment of the Barlow Road,7 an artificial rock wall, and an artificial pillar near East Mountain Air Drive. FHWA 161. ODOT

also had a cultural resources technician consult historic inventories to identify potential archeological

and historic resources within the project’s area of effect. FHWA 56–158. The resulting report found that

five groups of aboriginal peoples, including the Cascade Tribe, lived in the area around Mt. Hood. FHWA

61–62. It did not identify any archeological sites “listed

in, nominated to, or determined eligible in the National Register.” FHWA 66; see also FHWA 66–71

(evaluating historical and archeological sites outside

the project area for inclusion in the National Register).

It also noted A.J. Dwyer donated a “40 acre stand of

1st and 2nd growth trees” to the public in 1937, but

that it “would not qualify for the National Register.”

FHWA 72. The report ultimately concluded that the

“project area contains no National Register prehistoric

archaeological resources.” Id.

ODOT and the Federal Highway Administration

(“FHWA”) issued a draft EIS in June 1985. FHWA

165–301. The Draft EIS proposed a no-build alternative, two build alternatives from Wildwood to Zigzag,

and a build alternative from Zigzag to Rododendron.

FHWA 176– 78, 186–94. The preferred alternative required expanding a six-mile stretch of highway from

“The Barlow Road was established in 1846 between The Dalles and Oregon City following trailblazing by Samual Barlow and

others in 1845.” ACHP 59.

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two lanes to four lanes, adding a center turn lane, and

adding a six-foot-wide bicycle path along the shoulders. FHWA 59, 317. The Draft EIS noted several areas of controversy, including the removal of large trees

from the north side of the Dwyer Memorial Roadside

Preservation area (“the Dwyer area”), damage to wetlands, and danger to pedestrians. FHWA 178–79. The

Draft EIS indicated that the Dwyer area had “no official status,” so BLM managed it “under the principals

of multiple use and sustained yield.” FHWA 199. The

Draft EIS also reproduced the cultural resources report’s findings, which state: “The project area contains

no archeological sites listed in, nominated to, or determined eligible for the National Register of Historic

Places.” FHWA 216. The Draft EIS does not indicate

that ODOT or FHWA formally consulted with any Indian tribes. See FHWA 277–78.

After publishing the Draft EIS, ODOT held additional public hearings and sought and received substantial public comment. FHWA 449–470; see also

FHWA 513–687 (letters, reports, summary of public

testimony). Someone commented that the Draft EIS

did not mention “what appears to be a gravesite on the

north side of the highway in the Dwyer area.” FHWA

459. Other residents also “indicated that they wished

further study of some sites and objects they felt were

omitted by the Cultural Resources Report.” FHWA

487. Many of these comments originated from Citizens

for a Suitable Highway (“CFASH”), a local group led

by Michael P. Jones (“Jones”). E.g., FHWA 536, 541,

545, 548–55. Jones is a co-founder and curator of

plaintiff Cascade Geographic Society (“CGS”) and a

member of plaintiff Mount Hood Sacred Lands Preservation Alliance (“the Alliance”). Declaration of Michael

21a

P. Jones in Support of Standing of All Plaintiffs ¶¶ 1,

5–6, ECF #148 (“Jones Decl.”). Jones does not represent that he is a member of an Indian tribe or that he

practices any Native American religion. During a public hearing, Jones presented a slide show, including

photos of “stone pillars at the entrance to Mountain

Air Park, in Wildwood” and “the pioneer grave,” as

well as information about 50 other sites and features

in the project area. FHWA 537–38.

FHWA 7169 (photo of “white stone pillars”). Another

CFASH member wrote a letter indicating there was an

unmarked “pioneer grave” in Dwyer area. FHWA 577.

ODOT sent three archeologists to investigate. FHWA

302.

Pettigrew, Brian O’Neill, Ph.D., and another archeologist investigated the purported gravesite on March

4, 1986. FHWA 302 (“The rock feature in question . . .

was reported to the Highway Division by local citizenry during the summer, 1985. The citizens who reported it suggested that the rocks might mark the location of a pioneer grave, and thus might be of historic

cultural significance.”). Pettigrew wrote that his team

could “not determine with any confidence whether the

22a

feature is aboriginal or Euro-American.” FHWA 303

(“Pettigrew’s 1986 Excavation Report”). They found

“no subsurface disturbance accompany[ing] the placement of the rock pile on the surface. No skeletal material or other cultural objects were found.” FHWA 305.

Because the rocky deposit beneath the rock pile had

not “been previously disturbed in any way,” the archeologists wrote that they “were in complete agreement

that there was no evidence of disturbance of any kind

beneath the rock feature, and that the possibility of a

burial beneath the stones has been shown to be extremely remote.” Id. Pettigrew wrote, “Based upon our

investigations described herein, I recommend no further investigation of the rock feature, which has no

demonstrated archaeological significance and does not

in my judgment appear worthy of either protection or

mitigation.” Id. BLM Archeologist Frances Philipek

(“Philipek”) received a copy of the report. Id.

FHWA 306 (map of survey area in Pettigrew’s 1986

Excavation Report).

Another of CFASH’s many concerns was that expanding the highway “would destroy most of the old-

23a

growth in this area.” FHWA 549. Many others took the

same position. For example, then-retired Oregon Supreme Court Justice Thomas H. Tongue protested that

A.J. Dwyer decided not to log the area at considerable

expense during the Great Depression “in the hope that

for future years this corridor of old-growth trees would

remain to enhance the beautify of this highway and for

future generations to see and appreciate old-growth

Douglas fir trees.” FHWA 674. One CFASH letter contested ODOT’s conclusion in the Draft EIS that “[t]he

Dwyer Area is not an active part of a park or a recreation area and there are no plans by the [BLM] to make

it so.” FHWA 459 (Draft EIS), 566 (CFASH letter).

The final cultural resources report indicated the

only potential historic sites in the project area were a

possible segment of the Barlow road that lacked “integrity and interpretive potential” and a three-foothigh rock wall, the possible remnants of a toll gate.

FHWA 313, 324–25. On March 4, 1986, Pettigrew received a letter from CFASH threating a lawsuit “if the

potential gravesite is further disturbed.” FHWA 5079–

80 (“1986 CFASH letter”).

In early 1987, ODOT regional engineer Rick Kuehn

(“Kuehn”) worked with Jones to address CFASH’s concerns. FHWA 5405 (describing “numerous conversations”). Kuehn wrote a document describing over 70 issues he discussed with Jones. FHWA 5405–33. Kuehn

summarized the actions to be taken and cost implications for each issue. See id. In the Dwyer area, “the

north pavement edge [would be] moved 15 feet to the

south . . . by eliminating the left- turn refuge. These

changes resulted in the count of large trees (2 feet in

diameter and larger) to be removed dropping from 85

to 52.” FHWA 5407. Keuhn also wrote that the “stone

24a

pillars” would be relocated, and that there would be no

impact to the “pile of stones.” FHWA 5411. Jones wrote

a document explaining his views of the issues and

listed “conditions” that ODOT was to abide by. FHWA

5435–64. Kuehn and Jones referred to these combined

documents as an “Agreement for Conditions and Remedies for Mitigating and Resolving 26 Highway Dispute.” FHWA 5404 (“1987 Kuehn–Jones Agreement”).

In a cover letter to the documents, Jones’ indicated the

selected alternative “eliminates congestion and moves

traffic in a safe and effective manner, without sacrificing the area’s natural scenic beauty, historic and cultural resources such as the Barlow Trail and Faubion

Bridge, or eliminating the Dwyer Memorial Forest, the

Bear Creek wetlands, fish and wildlife habitats, and

the 17,000 plus trees which would have been removed

under the first proposals.” FHWA 5435. Jones also

wrote that he was “able to feel at peace that the Native

American or pioneer gravesite . . . will not be disturbed

by the widening. . . .” FHWA 5436. He noted, however,

that Kuehn referred to the site as a “piles of stones.”

FHWA 5442. In the early 1990’s, other ODOT staff indicated the document was not a binding agreement in

part because it was not signed. FHWA 5577.

Ultimately, FHWA chose to build “alternative two,”

with some modification, because it met “the project

goals of reducing congestion and improving safety,”

and it was the alternative “most responsive to the testimony received during the hearing process.” FHWA

440 (Final EIS). The modified “alternative two” design

still included four travel lanes, bike lanes on each side

of the highway, and a median turn lane in sections

where there [were] frequently used driveways and lo-

25a

cal streets.” FHWA 440. However, the design eliminated the continuous turn lane bordering the Dwyer

area and left the pavement edge alone instead of expanding it to the north. FHWA 441–44. The Record of

Decision stated that, since the Dwyer area is “an environmental[sic] sensitive area, the roadway section

through this parcel will be reduced to avoid 85 trees

with 2 foot DBH [diameter at breast height].” FHWA

700. FHWA concluded, and the Oregon State Historic

Preservation Office (“SHPO”) concurred, that the project “would have no effect on historic properties or archaeological resources in the area.” FHWA 511. The

final EIS does not indicate that ODOT or FHWA formally consulted with any Indian tribes. However, “a

series of survey and testing reports” generated to prepare the final EIS were sent to the Confederated

Tribes of Warm Springs (“Warm Springs”), the Confederated Tribes of the Grand Ronde Community of

Oregon (“Grand Ronde”), and the Confederated Tribes

and Bands of the Yakama Nation (“Yakama Nation”).

ACHP 216.

On January 24, 1991, ODOT met with Yakama Nation Tribal Council Chairman Wilferd Yallup and representatives of CFASH and CGS to discuss impacts of

the project from Zigzag to Rhododendron. FHWA

5565. ODOT brought an archeologist, a cultural specialist, and an engineer Walter Bartel (“Bartel”),

among others. Id. Yallup opened the meeting by indicating that FHWA had paved over a burial site between Goldendale and Toppenish in Washington

State, and that he did not want that to happen again.

FHWA 5566–67. When Bartel asked Yallup, “Are you

saying that there is a burial ground on this project?,”

26a

Yallup answered, “Yes,” and Jones added, “Rhododendron to the bridge.” FHWA 5567. But when Bartel responded, “Where exactly? Can you be a little more specific?,” Jones interrupted, “[W]e’re not going to get

down to specifics. If you want like pinpoints, you know,

we’re not going to do [that].” FHWA 5568. Yallup indicated there were “two burials somewhere in the vicinity of Zigzag.” FHWA 5574. Jones and Yallup later

spoke of Lorem ipsum dolor sit amet, consectetuer

adipiscing elit. Maecenas porttitor congue massa.

Fusce posuere, magna sed pulvinar ultricies, purus

lectus malesuada libero, sit amet commodo magna

eros quis urna.

Someone with ODOT asked about “moving to the

north side. Does that move us into another problem to

your knowledge?” FHWA 5591. Jones responded, “No.”

Id. He indicated there might be a cultural site “further

north” but it was “further away from the highway.”

FHWA 5592. After further discussion, CGS’ attorney

Michael Nixon summed it up: “[I]f you go to the north,

you have total avoidance with no adverse impacts on

those kinds of things [that] exist in the south. As

[Jones] mentioned, there are things that may [have]

been in the north at one time, but they’ve already been

destroyed. . . .” FHWA 5595. Jones reiterated that “if

you stay to the, if you stay to the north, there’s no,

there’s no problem.” Id. The word “Dwyer” does not appear anywhere in the meeting transcript.

Several days later, Yakima Nation General Council

Secretary Leo Aleck sent a letter to ODOT on behalf of

the Yakama Indian Nation requesting documents and

indicating many tribal members “still utilize this general area for cultural purposes.” FHWA 6303 (“1991

Yakama Letter). He also wrote that the area included

27a

sacred grounds, natural foods and medicines, and traditional use areas. FHWA 6303. Records indicate

Yallup and ODOT exchanged additional letters in late

1991 and sometime in 1992. ACHP 218–19. An ODOT

archeologist met with Jones in March 1992 and reported:

Two of the cultural features [Jones] expressed

concerns about were clearly not historic resources: 1. A rock stack (described as a possible

burial cairn) that exhibited no evidence of

weathering in place (lichen or moss growth, partial collapse, etc., and located on an abandoned

road track); it appeared to my eyes to have been

a recent dumping episode, probably to block access on the older road.

ACHP 219.

Lorem ipsumdolor sit amet, consectetuer adipiscing elit. Maecenas porttitor congue massa. Fusce

posuere, magna sed pulvinar ultricies, purus lectus

malesuada libero, sit amet commodo magna eros quis

urna.

In 1993, ACHP asked the Keeper of the National

Register of Historic Places to determine if Enola Hill,

a hill southeast of Rhododendron, should be listed in

the National Register. FHWA 1918. The Keeper indicated there was not enough evidence to make the determination, and in 1994, the Forest Service asked the

Keeper to suspend ACHP’s request. FHWA 1919. Also,

in 1993, CGS and others sued to stop a timber sale on

Enola Hill. The court granted the Forest Service’s motion for summary judgment stating, “Significant inventories conducted in 1983, 1988, 1990, and 1992 re-

28a

vealed no physical evidence of sites of traditional cultural value.” Native Americans for Enola v. U.S. Forest

Serv., 832 F. Supp. 297, 300 (D. Or. 1993). The Ninth

Circuit dismissed plaintiffs’ appeal as moot. Native

Americans for Enola v. U.S. Forest Serv., 60 F.3d 645,

646 (9th Cir. 1995). In 1996, CGS submitted additional

ethnographic materials concerning potential properties in the “Enola Hill area” to the Keeper and the Forest Service. FHWA 1918. As of this writing, Enola Hill

is not listed in the National Register. National Register Database and Research, National Register of Historic

Places,

https://www.nps.gov/subjects/nationalregister/database-research.htm (last visited

March 16, 2020).

B. US 26 Rhododendron to OR 35 Junction

project

Although the widening from US 26 Rhododendron

to OR 35 Junction was east of the Wildwood to Wemme

project area, its history provides additional context.

Under an Oregon law establishing “a new vision for

surface transportation,” ODOT conducted a study of

US 26, exploring alternatives to accommodate “future

increases in travel demand.” FHWA 1021. FHWA published a Draft EIS and sought public comment in the

summer of 1995. The Draft EIS noted, “Because the

highway traverses an environmentally sensitive and

culturally rich portion of the Mount Hood National

Forest, any significant highway improvements could

have natural, visual, and cultural impacts.” FHWA

1022. It also noted that future demand will exceed existing capacity and that the accident rate is twice as

high as those in other primary rural, non- freeway

highways. FHWA 1024. The Draft EIS included four

alternatives varying in scope and impact: (1) a no-

29a

build alternative, (2) adding a single lane from Rhododendron to Laurel Hill and four lanes from Laurel Hill

to OR 35, (3) adding three lanes from Rhododendron

to Laurel hill and four lanes from Laurel Hill to OR 35,

or (4) adding four lanes from Rhododendron to OR 35.

FHWA 1580. In addition,

ODOT consulted with Indian tribal organizations through a series of letters to the Confederated Tribes of the Grand[] Ronde, Siletz, Warm

Springs, and Umatilla Reservations, and to the

Yakama Indian Nation, informing the tribes

about the study, and asking them to respond

with information on cultural resources. The

Study team and ODOT Project staff met with

the Tribes of the Grand Ronde and Warm

Springs and invited them to participate on the

Technical Advisory Committee. American Indians were invited to and attended some of the

Citizen Advisory Committee meetings.

FHWA 1744 (1998 Mount Hood Corridor Final EIS);

see also FHWA 1805 (listing same consulted Indian

tribes). ODOT also sent the tribes copies of the Draft

EIS and Draft Section 4(f) Evaluation in March 1997.

FHWA 1757.

In April 1997, CGS opposed all measures to widen

US 26 through extensive written comment. See FHWA

1825, 1857–66. CGS emphasized that Enola Hill is a

sacred site to the Yakama Indian Nation. FHWA

1829–35. Jones wrote that he worked with various archeologists to study the area, and stated, “Although I

provided [an ODOT archeologist] with no site specific

information, she had some boundaries of sensitive areas that the Highway 26 project had to stay away from

to prevent destroying important cultural, historical,

30a

and natural resources.” FHWA 1835. Jones repeatedly

lamented ACHP’s finding that Enola Hill was ineligible for the National Register. FHWA 1836; FHWA

1819–21 (emphasizing negative impacts to Enola Hill,

Laurel Hill, Tollgate, and Yocum Falls areas during a

public hearing). A 1997 archeological sampling of the

Barlow Road toll station near Rhododendron revealed

cultural materials in the form of a disposal site for

Tollgate House occupants, early 20th-century recreational usage, and a 1930s guard station. FHWA 1516.

However, the report indicated that the “data are easily

recoverable should highway expansion occur.” FHA

1516.

ODOT received many other comments taking opposing positions and raising many other concerns, including impacts on the environment, endangered species, and increased pollution from the build alternatives, and impacts on traffic, safety, and the economy

from the no-build alternative. See FHWA 1839–1907.

For example, one woman wrote that she was “fiercely

opposed to any further laying of pavement anywhere

in this state.” FHWA 1868. Many comments focused

on the preservation of the “Enola Hill/Tollgate Area.”

FHWA 1902. Various chambers of commerce wrote in

support of expansion for Oregon’s “future economic

health,” FHWA 1846, and members of Mt. Hood ski

clubs advocated for “maximum highway widening.”

FHWA 1899. Ultimately, FHWA chose “a blend of Alternatives 3 and 4” because it met the “project objectives for improving safety, maintaining an acceptable

highway [level of service], and increased capacity,

while preserving the important environmental and

historic resources.” FHWA 1914.

C. Wildwood to Wemme project

31a

1. Before Revised EA and FONSI

In December 1998, ODOT received a letter signed

by just over 650 residents, recurrent visitors, and patrons of local business along US 26 expressing “great

concern and fear for their personal safety due to the

lack of a left turn [lane]” between Wildwood and

Wemme. FHWA 2503–33, 1980, 4440; ACHP 180.

They complained that the traffic situation was “extremely dangerous” and petitioned for the provision of

a left-turn lane to “increase the safety of travel for all

users.” FHWA 4441. In response, ODOT and defendants began efforts to ameliorate these unsafe conditions. FHWA 1976 (January 2000 Scoping Packet).

FHWA 4959 (map of project area in Revised EA).

The project’s stated purpose was to improve safety

on this section of highway “to match the cross section

(width of lanes, center turn lane and shoulders) to that

of the roadway to the east and west of the proposed

project area.” FHWA 4957. The safety improvements

were needed because about 40 driveways and streets

access this section of highway, “creating a safety hazard for vehicles making left turns onto and from the

32a

highway. FHWA 4957–60. Left-turning motorists

were frequently required to stop in the fast lane to

wait for a gap in oncoming traffic while those turning

left onto the highway had no median refuge to enter.

“Fourteen accidents, two fatal, were reported in

this section between January 1997 and December

2002.” FHWA 4793. Thirteen accidents were reported

within the project limits in the five-year period from

2000 through 2004. FHWA 4960; see also FHWA 4787

(indicating “public concern for safety due to traffic accidents and fatalities in the project area was the primary motivator driving this project” in a January 2007

Public Involvement Tech Report).

The scoping packet indicated “widening to the

north would require removal of many large diameter

trees and extensive filling. ODOT expended considerable effort to protect these trees. The Dwyer Corridor

traverses an old-growth timber grove that provides a

scenic canopy over the highway.” FHWA 1980.

In 2001, FHWA and ODOT executed a Programmatic Agreement (“PA”). FHWA 2020–30. The PA allows ODOT to undertake minor transportation projects without further review by ACHP, FHWA, or the

SHPO, so long as ODOT complies with a proscribed

internal review process. FHWA 2024–26. The PA also

provides that “ODOT and FHWA will maintain ongoing consultation with Oregon’s nine federally-recognized tribal governments . . . in accordance with each

tribe’s vision of effective consultation . . . and will be

consistent with coordination required under 36 CFR

800.” FHWA 2027.

In late 2003, ODOT held a public hearing. FHWA

2031–40. Internally, ODOT staff were sympathetic to

33a

the safety issues, but an ODOT project manager recounted how the “community went nuts when this section of highway was proposed for five lanes in the

1980s. . . . Because of the public uproar, the highway

was reduced to four lanes.” FHWA 2042. In September

2004, ODOT issued a project prospectus indicating an

environmental assessment would need to be prepared.

FHWA 2047. Under a subsection titled “Estimated Archaeology and Historical Impacts,” ODOT cited the

1985 Draft EIS from the Wildwood to Rhododendron

project and stated, “Historic resources along the project corridor will need to be reassessed. Some of the

structures that were ineligible for listing in 1985 may

now be eligible for the National Register. Section 106

documentation will be necessary for any impacted historic resources.” FHWA 2049. Led by staff archeologist

Patrick O’Grady, ODOT conducted exploratory archaeological surveys in early 2005 and issued a report

that June. FHWA 2410–54 (“O’Grady report”).

FHWA 2419 (map of pedestrian survey area in

O’Grady report).

34a

The archeological teams conducted 38 shovel

probes and hundreds of shovel scrapes. FHWA 2411–

14. The teams conducted pedestrian surveys along

both sides of the highway, revealing two historic-era

trash scatters, an isolated hand-forged barrel hoop, an

Oregon Trail marker, and a house foundation. FHWA

2414. The report cites Pettigrew’s 1986 Excavation Report and other resources used and generated during

the prior projects. See FHWA 2417. The O’Grady report recounts and confirms Pettigrew’s finding that

“the rock cluster did not have archaeological significance and was not worthy of protection or mitigation.”

FHWA 2414. O’Grady sent his report to, among others,

the Grand Ronde Cultural Resources Coordinator

Khani Schultz (“Schultz”), the Cultural Resources Director Robert Kentta (“Kentta”) of the Confederated

Tribes of Siletz Indians (“Siletz”), and Warm Springs’

Cultural Resources Manager Sally Bird (“Bird”).

FHWA 2416.

In 2005 and 2006, ODOT mailed four newsletters

and postcards advertising three public hearings to

about 3,700 people located near the project area.

FHWA 4786–87. On March 21, 2005, ODOT issued a

news release and sent postcards announcing a March

31, 2005 open house to about 700 people located near

the project area. FHWA 4791–92. Interested parties

submitted public comments, and about 35 people attended the open house. FHWA 4794–4800. ODOT invited Jones to the open house. FHWA 2153.

ODOT compiled a project development team of

“technical staff from traffic, engineering, planning and

environmental fields” to explore and ultimately make

a recommendation to ODOT management and FHWA.

FHWA 4353. The team considered seven alternatives

35a

in total: no build, widen to the north, widen to the

north and realign, widen to the south, widen to the

north and south, relocate BLM access to the Wildwood

Recreation Site, and add a median barrier to prevent

any left-hand turns. FHWA 4359–64. The widen-tothe-north alternative would move the northern edge of

the pavement 14 feet to the north and require tree cutting. FHWA 4354.

FHWA 4962 (depicting widen-to-the-north alternative).

The widen-north-and-realign alternative would

move the northern edge of the pavement 20 feet to the

north and require even more tree cutting and would

also impact wetlands. FHWA 4360. The widen-south

alternative would move the southern edge of the pavement 14 feet south and would impact private properties, utilities, local businesses, wetlands, public park

property, and the “pristine, high priority, historic Barlow Road trace,” in addition to requiring tree cutting.

FHWA 4361. The widen-north-and-south alternative

“would not save trees,” but would still impact private

property and the Barlow Road trace. FHWA 4362. The

36a

BLM-access-alternative would still require widening

to the north and thus “would not save the large trees,”

in addition to impacting additional vegetation, wildlife

habitat, traffic patterns, and private property. FHWA

4363. Finally, adding a median barrier to prevent left

turns would necessitate cutting even more trees than

the widen-to-the-north alternative because the barrier

would require inside shoulders and “turnarounds or

jug handles and traffic lights at each end of the median” to allow residents to access their homes. FHWA

4364. The team specifically considered the impacts of

the widen-to- the-north alternative on the Dwyer area.

FHWA 4379, 4406. ODOT also found that the “the

Mountain Air Park pillars do not meet the criteria for

listing in the National Register . . . [because they] lack

distinction and, because they have been moved, they

lack the ‘location’ aspect of integrity.” FHWA 4496.

On September 1, 2005, ODOT issued another news

release, sent postcards to about 550 local landowners,

and mailed about 3,000 area residents, announcing a

September 13, 2005 open house. FHWA 4786, 4805.

ODOT specifically sought “participant feedback on the

‘No Build’ option and 4 proposed design alternatives.”

FHWA 4805. ODOT invited Jones. FHWA 2158.

ODOT’s summary of the meeting indicated that “‘people’s lives ahead of trees’ was a common theme.”

FHWA 4805. “Alternative 1: Widen North” received

the most favorable public response while the “No

Build” alternative received the least favorable response. FHWA 4805–10. Thirty-one people attended,

and many submitted written public comments. FHWA

4811– 4902. Several attendees submitted the same

written comments, one of which asked ODOT to disre-

37a

gard those submitted by people who were not “impacted by the current danger to life and property” by

the lack of center turn lane. FHWA 2700–09. One person handwrote, “This means Michael P. Jones!” next

to this comment. FHWA 2703 (emphasis in original).

In September 2005, an ODOT archaeologist Kurt

Roedel (“Roedel”) met with Warm Springs’ tribal elders and provided them with “project information and

a project area map.” FHWA 5955 (ODOT’s summary

of tribal consultations); FHWA 2609 (map).

On January 30, 2006, Roedel contacted Schultz,

Kentta, and Bird, provided them with a fieldwork notification and project area map, and explained the archeological resources identified during prior fieldwork.

FHWA 5955. Roedel also emailed the Executive Director of the Oregon Commission on Indian Services asking whether he should consult the Yakama Nation

about “any ODOT projects.” FHWA 6084, 6086. The

representative responded that Yakama Nation has

“‘usual & accustomed’ interests in some areas . . . primarily along the Columbia River,” and told him to

“contact me for any specific project.” FHWA 6084.

Roedel responded with gratitude but did not ask

whether the Yakama Nation should be consulted

about the Wildwood to Wemme project. FHWA 6084.

ODOT did not contact the Yakama Nation about the

project again until April 2008, after Jones provided

ODOT with documents from the Wildwood to Rhododendron project, including a transcript of the 1991

Yallup meeting and the 1991 Yakama letter. See

FHWA 4979 (omitting Yakama Nation from ODOT’s

list of consulted parties in Revised EA).

38a

On January 25, 2006, ODOT issued a third news

release and sent a mailer and postcards soliciting public comment at a February 23, 2006 open house.

FHWA 4904–08. ODOT again invited Jones. FHWA

2159. Thirty-three people attended, and about half of

them submitted public comment. FHWA 4909. The

“meeting participants were positive about the proposed alternative (Widen to the North) and expressed

desires to see the project constructed as soon as possible. Comments provided at the meeting tended to focus

on specific concerns such as water runoff, drainage, pedestrian connectivity (trails), and traffic enforcement

(speeding).” FHWA 4909.

In March 2006, Roedel emailed a fieldwork notice

to Bird and asked for comments, questions, and

whether she “would like to accompany [the Oregon

State Museum of Anthropology] during their fieldwork.” FHWA 3062, 5955. At a quarterly meeting with

Warm Springs tribal elders the same month, ODOT

discussed over 30 ongoing and upcoming projects, including the Wildwood to Wemme project. FHWA

3178–80, 5955.

In April 2006, ODOT sent postcards and mailers

indicating it was focusing on the “Widen to the North”

alternative, advertising an upcoming open house and

linking to an ODOT website with more information.

FHWA 4924–27. The mailer included preliminary environmental findings. FHWA 4925. The postcard allowed people to request copies of the forthcoming Draft

EA, and Jones requested a copy. FHWA 4102. Meeting

notes from a May 18, 2006 project-development-team

meeting indicate Jones also requested a mediation

through Clackamas County but that the request “was

being refused by ODOT because [Jones] had not

39a

availed himself of the public process that has been created for the project and made available to the public

for project involvement. [Jones] has not yet participated in any of the public meetings.” BLM 63. ODOT

held another quarterly meeting with the Grand Ronde

in April 2006, and Schultz followed up, indicating

Grand Ronde had “no immediate concerns” regarding

the project. FHWA 5955. O’Grady also conducted another pedestrian survey in 2006, largely confirming

his earlier findings. ACHP 57–62.

ODOT undertook many other significant efforts to

explore the alternatives and prepare a Draft EA. E.g.,

FHWA 3332 (April 2006 Historical Resources Technical Report); FHWA 3409 (May 1, 2006 Visual Resources Technical Report); FHWA 4028 (May 3, 2006

Geology Technical Report); FHWA 3494 (May 4, 2006

Biological Assessment); FHWA 3594 (May 9, 2006

Traffic Report); FHWA 4003 (July 2006 finding no effect on endangered or threatened species); FHWA

4517 (September 2006 finding no effect on Norther

Spotted Owl). Of particular significance is a May 26,

2006 report titled “A.J. Dwyer Input for WildwoodWemme Highway Widening Project” prepared by a

BLM botanist and a BLM outdoor recreation specialist. FHWA 4472. They reported that the “A.J. Dwyer

Scenic Area is a five-acre parcel of land . . . north of

and adjacent to U.S. Highway 26 and immediately

across from the entrance of the Wildwood Recreation

site.” Id. BLM manages the scenic area, which “was

designated a Special Area in the BLM’s 1995 Salem

District Resource Management Plan with scenic and

botanical values as the identified unique features.” Id.

The area also is within the Mt. Hood Corridor, “a Congressionally designated scenic area which requires

40a

that scenic values be protected on BLM lands that can

be seen from U.S. Highway 26.” Id. There were “several large older trees” adjacent to the highway, but the

report emphasized that the “truly unique botanical

values” in the area “include a diverse group of lichens

and vascular plants.” Id. The area is particularly

unique because it hosts a “diverse botanical community,” not seen elsewhere with similar environments.

See id. Under the widen-to-the-north alternative,

about “65 trees over 24 inches in diameter at breast

height (dbh) would be removed, including an estimated 22 older and larger trees that are greater than

40 inches in diameter at breast height (dbh).” Id. However, the “diverse group of lichens and vascular plants

in the northern portion of the A.J. Dwyer parcel would

not be disturbed as a result of the proposed project.”

FHWA 4473. The report concludes that aside from

“some visual disturbance,” the general character of the

area would generally remain unchanged and the project was “expected to be in compliance with management objectives associated with the AJ Dwyer Scenic

Area and the Mt. Hood Corridor. Id.

ODOT emailed Schultz, Kentta, and Bird “Finding

of No Historic Properties Affected” reports and results

from O’Grady’s second pedestrian survey in June

2006. FHWA 3820. On June 12, 2006, Oregon SHPO

concurred with the Section 106 finding that no historic

properties would be affected by the project. FHWA

3337, 3763.

In September 2006, ODOT issued another public

newsletter and sent a copy to Jones. See FHWA 2160.

ODOT also consulted with local organizations that expressed interest in the project, including the Barlow

41a

Trail Association and the Mt. Hood Safety Corridor

Citizens’ Advisory Commission. FHWA 4428.

ODOT and FHWA issued the Draft EA in late August 2006. FHWA 4346–4438. The Draft EA noted that

archeologists from the University of Oregon had conducted pedestrian surveys of the project area in April

2005 and March 2006, and recorded “an isolated barrel

hoop, a house foundation, two trash scatters, and an

Oregon Trailer marker. They re-examined a previously identified section of the Barlow Road. No prehistoric cultural materials were identified during the survey.” FHWA 4389; ACHP 57. The Draft EA also indicated that after conducting field surveys and consulting resources, a historian identified 30 potential historic properties near the project area. FHWA 4390. Of

those, ODOT identified five historic resources that

were “potentially eligible for, or listed in, the National

Register of Historic Places,” but reported that the

widen-to-the-north alternative would not affect them.

FHWA 4390–94. The Draft EA quoted O’Grady’s 2006

report:

A rock cluster that was previously recorded Pettigrew (1986) was not relocated during this or

the previous project. Tested as a possible burial

site, the rock pile showed no evidence of subsurface disturbance. An on-site evaluation by Pettigrew and ODOT Archaeologist Leland Gilsen

concluded that the rock cluster did not have archaeological significance and was not worthy of

protection or mitigation.

ACHP 60.

On September 21, 2006, ODOT issued a fourth set

of news releases and mailers soliciting public comment

42a

and a public hearing. FHWA 4929. ODOT kept the

comment period open until October 20, 2006. Id. Only

16 people attended this meeting, and only five made

public comments. One comment requested that ODOT

put up signage during Wildwood events indicating

“heavy traffic ahead.” FHWA 4935. Another comment

simply stated: “To the folks at ODOT[,] a hearty

thanks for all the hard work. Your determination will

carry this project through.” FHWA 4933 (capitalization altered).

ODOT issued the Revised EA and FONSI on January 25, 2007, selecting the widen-to- the-north alternative. FHWA4951, 4961. The Revised EA sets forth

all of ODOT’s considerations regarding of the project’s

effects on the geologic environment, water quality and

hydrology, wetlands, wildlife and plant species, air

quality, visual resources, and social and economic conditions, among others. FHWA 4966–71. In addition,

ODOT reported that it could reduce the number of

trees cut by using “a more gentler, more transversable[sic] slope where new small trees and other native

vegetation can be re-planted to mitigate for visual impact.” FHWA 4972. Jones called in with a single comment, which ODOT reproduced in the Revised EA:

“Mr. Jones noted ODOT’s intent to protect and relocate the white stone pillars on the north side of the

highway. He stated that the Cascade Geologic Society

owns the pillars.” FHWA 4977.

2. After Revised EA and FONSI

ODOT sent a final project notice to the public on

February 15, 2007. See FHWA 5001–15. Jones is listed

as a recipient. FHWA 5006. By November 2007, ODOT

planned to coordinate construction with two other

nearby projects and proceeded to secure a right of way

43a

and tree cutting permit. FHWA 5035, 5043. These

three projects were collectively referred to as the “US

26: Salmon River Bridge to East Lola Pass Road” project.

ODOT discussed the project during a quarterly

meeting with Warm Springs on November 26, 2007.

FHWA 5049. For the first time, Warm Springs tribal

elders raised concerns about potential cultural resources in the project area, which were apparently

brought to them by plaintiff Carol Logan (“Logan”).

See FHWA 5676. Logan is “an Elder” and “enrolled

member” of Grand Ronde. Declaration of Carol Logan

in Support of Standing ¶¶ 2, 5, ECF #147. She is “a

lineal descendant of the Clackamas People, one of the

signatory tribes of the 1855 Treaty with the

Kalapuya.” Id. ¶ 4. Roedel’s notes of the November 26,

2017 meeting indicate the prior highway-widening

projects and cultural-resource investigations, including Pettigrew’s 1986 archeological excavation were

discussed. FHWA 5049.

Roedel and ODOT archeologist Tobin Bottman

(“Bottman”) began exchanging emails with Eirik

Thorsgard (“Thorsgard”), Grand Ronde’s Cultural Protection Coordinator. FHWA 5467. ODOT sent

Thorsgard Pettigrew’s 1986 Test Excavation Report.

FHWA 5050–59. Thorsgard responded that “this is the

exact area that was brought to my attention” and accepted that the site was not a burial, but indicated that

the report “does not answer several other questions

about the orientation and use of this stone pile, such

as a prayer area[, i.e.,] a rock cairn, or use as a trail

marker for the Old Barlow Road.” FHWA 5066, 5082.

44a

On November 30, 2007, archeologist Brian O’Neill,

who participated in Pettigrew’s 1986 archeological investigation, sent a memo to Roedel with two attachments: the 1986 CFASH letter and a picture of the

site. FHWA 5078–81. O’Neill wrote:

As you can see from the attached photograph, we carefully avoided disturbing the integrity of the rock pile by excavating beside it

and then tunneling beneath it from the profile

to examine the potential for human remains. As

I recall, there was no change in the soil texture

and we certainly observed no skeletal (neither

human nor non-human) material.

FHWA 5078. Bottman and Thorsgard exchanged additional emails about the site. On December 10, 2007,

Thorsgard wrote, “I am not sure that I would call this

rock feature cultural if I had found it, it most likely is

a pile of rocks from ploughing,” but indicated he would

visit the site with tribal elders. FHWA 5088.

Thorsgard sent ODOT pictures after they visited the

site. FHWA 5134–46. Bottman then sent Thorsard additional reports from the prior projects. FHWA 5199–

5339. He also sent two memoranda to Kentta, Bird,

and Thorsgard on December 19, 2007, and exchanged

phone calls and emails with Thorsgard and Bird about

cultural resources in the project area. FHWA 5360,

5676. Thorsgard and Bottman agreed that “a tribal

monitor must be present during ground disturbing

construction” for the project. FHWA 5351. Bottman indicated he would contact Thorsgard at least a month

before construction began to coordinate with the tribal

monitor. See FHWA 5351, 7484.

In January 2008, a year after the Revised EA and

FONSI were issued, Jones and Logan contacted

45a

FHWA and ACHP. Jones called FHWA Operations

Engineer Jeffrey Graham (“Graham”) on January 25,

2008, and spoke at length about his involvement with

the prior highway-widening projects and his interest

in preserving the white stone pillars. FHWA 5392– 93,

5397. Jones sent Graham a copy of the 1987 Kuehn–

Jones Agreement. FHWA 5404–64. They discussed the

white stone pillars, and Jones identified two people to

assist with their relocation. ACHP 27–28. ODOT sent

Jones letters in January, February, and May 2008 proposing to relocate the white stone pillars. FHWA 6067;

ACHP 167–68. Logan called Graham on January 31,

2008, to express her concern about usual and accustomed places. FHWA 7486. She called him again in

early February and told him she did not think Warm

Springs and Yakama Nation had been contacted.

FHWA 7489.

On February 14, 2008, Jones and Logan faxed a letter to FHWA demanding a new Section 106 review of

the project area to identify “all heritage resources.”

FHWA 5474–83; ACHP 25–26. They raised the Zigzag

to Rhododendron EIS, Pettigrew’s 1986 Test Excavation Report, the 1987 Kuehn–Jones Agreement, the

1991 Yallup meeting, the 1991 Yakima Letter, technical advisory reports from the prior projects, additional meetings with “Nez Perce and Umatilla spiritual leader” Rip Lone Wolf, meetings and communications with Jones, and other meetings and communications with “American Indians.” FHWA 5475–76.

They wrote that, upon further agency review, “American Indian sites in the ‘Dwyer Memorial Forest’ will

constitute a ‘district’” for the National Register.

FHWA 5477. Additionally, they listed 33 other sites of

interest along the US 26 including the Barlow Trail

46a

and Enola Hill. FHWA 5478–79. They also called

ACHP and demanded a New Section 106 Process” for

the Wildwood to Wemme project. ACHP 36, 47.

Throughout February 2008, Bottman coordinated

with Thorsgard to have a tribal monitor present during construction. FHWA 5646, 5666–69, 5726–28,

5973. Grand Ronde’s Cultural Resources Division

Manager David Lewis, Ph.D., wrote ODOT a letter explaining that only three members of the Cultural Protection staff officially represent the Tribe’s interests in

cultural resource management, including himself and

Thorsgard. FHWA 6911.

We are aware that at times members of the

Tribe speak out in public meetings and seek to

represent the Tribes and cultures in which their

ancestry is derived. If Tribal members are not

employed in an official capacity with the

Tribe, . . . please be aware that they can only

represent their personal perspectives regarding

the issues at hand. We believe that they have

this right to speak their opinions but that there

are not supported by the Tribe unless a Tribal

official speaks in support. Thank you for your

attention to this issue.

FHWA 6910–11 (emphasis in original).

On February 15, 2008, following additional discussion with Logan, Bottman again spoke with

Thorsgard, who stated, “Carol is not representing the

Tribe, she is not advertising the Tribe’s position, she

is working as a private individual in concert with Michael Jones. The tribe’s official position is that ODOT

has done and followed the 106 and NEPA process. We

have no fault with what they have done.” FHWA 5652.

47a

BLM issued ODOT a tree cutting permit in late February 2008. BLM 33–38.

Jones and Logan called and faxed letters and additional documents to ODOT, FHWA, and ACHP in

early March 2008. They reproduced the 1991 Yakama

Letter and indicated defendants should have contacted Yakama Nation about the project. ACHP 25-26,

44–49, see also FHWA 6139 (email from ACHP to

FHWA). They demanded defendants conduct new Section 106 and Section 4(f) reviews.

In response, ODOT investigated Yakama Nation’s

ties to the project area. ODOT had retained a copy of

the 1991 Yakama letter, and noted that it referred to

the Zigzag-to- Rhododendron portion of the 1980s project, which was “outside of this project area.” FHWA

6301. Bottman’s notes indicate he spoke with Yakama

Nation council member Kate Valdez (“Valdez”) on

March 10, 2008. FHWA 7495. Valdez requested project

details, and Bottman complied by sending the EIS’s

and EA’s of the three projects along US 26 and underlying archeological reports. FHWA 6425, 6430. Valdez

confirmed receipt of this information and indicated

ODOT should contact Yakama Nation’s Cultural Resource Manager Johnson Meninick (“Meninick”) to discuss any consultation issues. FHWA 6434, 7211.

On April 4, 2008, Bottman emailed Meninick that

“a member of the public has recently been acting as a

representative for a handful of Tribally affiliated folks,

including members of the Yakama [He] has insinuated that ODOT failed to consult with the Yakama nation.” FHWA 6544. Bottman then invited Meninick to

discuss the project and any additional areas of con-

48a

cern. FHWA 6544. Bottman forwarded his conversation notes to his colleagues. FHWA 7194, 7203.

Bottman wrote that Meninick

said that he didn’t see a reason for further consultation based on the scope, especially in light

of the negative results of the extensive archaeological investigations conducted. Mr. Meninick

did say that further discussion about consultation boundaries for Oregon projects outside of

the Gorge would be appreciated and could help

insure that this kind of situation does not happen again.

FHWA 7194. ODOT then concluded it had satisfied its

Section 106 consultation duties to Yakama Nation.

FHWA 7199.

In April 2008, after ODOT cleared trees from the

project area, a local newspaper ran an article featuring

CGS members Jones, Jackson, and Logan who were

accusing ODOT of “intruding on sacred burial sites”

and of a “deliberate attempt to ignore the truth.”

FHWA 6513–14. Bottman scanned and emailed the article to Bird and a Warm Springs’ archeologist stating,

“there are some pretty erroneous statements in it” and

invited further discussion. FHWA 6515, 6565–68. Bird

emailed back that they had received a report “a grave

was found and that the Grand Ronde was consulted

and said to not worry about it. Though I don’t think

this could have happened[,] I need to follow up and

stop some rumor before it gets to the public.” FHWA

6518. Bird spoke with the Warm Springs’ archeologist

then again emailed Bottman to “please disregard the

first email.” FHWA 6520, 6523. The archeologist

thanked Bottman for his attentiveness and responded

that she did not “foresee any follow-up as being

49a

needed.” FHWA 6519. Bottman also forwarded the article to Thorsgard, who replied that “Carol is very adamant about stopping this project regardless of the

damage it does to any agency or individual,” and offered further assistance. FHWA 6527. FHWA published its Notice of Final Agency Actions on April 8,

2008. Notice of Final Federal Agency Actions on U.S.

26, Wildwood to Wemme: Clackamas County, OR, 73

Fed. Reg. 19134-02 (April 8, 2008).

In response to a request by Jones and Logan in

early 2008 for ACHP to review FHWA’s compliance

with Section 106, ACHP sent FHWA a letter stating

In accordance with the [programmatic agreement], ODOT consulted with the Oregon State

Historic Preservation Officer and three federally recognized Indian Tribes. Neither

the

SHPO nor the tribes raised concerns about the

project or its impacts on the AJ Dwyer Scenic

Area. . . .

This is clearly a place of importance to the parties that contacted the ACHP. To be eligible for

inclusion in the National Register as a traditional cultural property, a place must generally

be associated with cultural practices of a larger

community (NPS National Register Bulletin

38). As project construction has already commenced, and no federally recognized Indian

tribes have come forward or expressed any concerns about the project’s effect on the AJ Dwyer

Scenic Area, we do not recommend any further

action at this time.

FHWA 6572–73.

50a

On May 5, 2008, Jones sent ACHP memoranda

from plaintiffs Wilbur Slockish (“Slockish”) (ACHP

117–25), Johnny Jackson (“Jackson”) (ACHP 127–35),

and Logan (ACHP 137–43). Slockish is the hereditary

chief of the Klickitat Tribe. Declaration of Hereditary

Chief Wilbur Slockish in Support of Standing ¶ 6, ECF

#146 (“Slockish Decl.”). Jackson is a Chief of the Cascade Tribe. Declaration of Heredity Chief Johnny

Jackson in Support of Standing ¶ 1, ECF #151 (“Jackson Decl.”). These are bands, or subtribes, within

Yakama Nation. Slockish Decl. ¶ 6, ECF #146; Jackson Decl. ¶¶ 4, 7, ECF #151. Both Slockish and Jackson are direct lineal descendants of signers of “the

Confederated Tribes and Bands of The Yakama Nation Treaty of 1855.” Slockish Decl., ¶ 4; Jackson Decl.

¶ 4. They are both members of the Alliance and CGS.

Slockish Decl. ¶ 3; Jackson Decl. ¶ 3. Yakama Nation

is a federally recognized Indian tribe, but the Klickitat

and Cascade tribes are not. See Federal Register Vol

73, No. 66 April 4, 2008 at 18554.

Slockish’s first memo indicates his people buried

their dead in the “area known today as the ‘Dwyer Memorial Forest.’” ACHP 118. The second memo indicates the Dwyer Memorial Forest is sacred, it contains

natural medicines of great significance, and it is a

place of great significance to his people. ACHP 123–

24. Slockish also indicated he

was never contacted either by [ODOT or

FHWA,] or any of their contractors, about the

Section 106 process for this highway project,

even though [he] should have been. After [he]

contacted representatives of [ODOT and

FHWA,] and left messages as to who I was and

51a

why I was calling, they chose not to communicate with me.

ACHP 125.

Jackson’s memos relate how his people gathered

traditional foods near Mt. Hood, including near the

highway project. He also wrote that his people passed

through the Dwyer Memorial Forest, where a traditional camp was located. ACHP 129. He indicated

there are sacred burial sites in the Dwyer Memorial

Forest. Id. He also indicated that two of his uncles

worked with Jones to oppose the previous highway expansion projects, including his Uncle Yallup. Id. at

132–34. He wrote that the Dwyer Memorial Forest,

among many other locations, is a “Usual and Accustomed Place” on Mount Hood and that these places are

of great significance to his people. ACHP 134. Jackson’s final memo ends:

Our traditional cultural properties on Mount

Hood are not in the way of highway improvements. [ODOT and FHWA] just needs to do

things differently, but only after allowing the

Native People the chance to speak and give testimony in order to prove the significance of our

sacred places on [Mt. Hood.] I am not asking you

to do anything out-of-the ordinary. Stop the

[ODOT and FHWA] from inflicting any further

destruction on our sacred places and sites. Allow us the chance to have our elders speak and

give testimony, which is something that should

have happened.

ACHP 135.

Logan wrote that the project would destroy the

Dwyer area and other usual and accustomed places,

52a

including “burials, the medicine sites, the village site,

the ancient American Indian Trial.” ACHP 142. She

related her opinion that the Dwyer area should be

listed in the National Register, along with over 40

other sites along US 26. ACHP 142–43.

On May 13, 2008, Yakama Nation vice-chairwoman Lavina Washines sent a letter to ODOT. It begins, “This letter is being sent as a follow up to a letter

sent in January 1991. ” FHWA 6949. She indicates

that Yakama Nation “should be consulted with on any

activities occurring in the Mt. Hood Area, for these are

areas very sacred to our people. Areas we do not wish

to see any construction activities occurring.” FHWA

6949.

BLM issued a deed for the right of way on May 15,

2008. BLM.

Bottman, Graham, and other ODOT and FHWA

staff realized they were getting a different message

from Washines than they were receiving from Meninick. FHWA 7205. Accordingly, they drafted a response

to Washines’ letter. FHWA 7202–39. In a June 2008

letter to Washines, they summarized their discussions

with Valdez and Meninick, again recounted Meninick’s opinion that “he saw no reason for further consultation on this project based on the scope, especially in

light of the negative results of the comprehensive investigations that have been conducted.” FHWA 7274–

75. Washines did not respond to this letter. The same

month, CGS’ attorney sent defendants a letter demanding a new Section 106 review. ACHP 5.

On July 7, 2008, Jones spoke with archeologist

Philipek and told her that the “site” had been vandalized. BLM 8. About three weeks later, Philipek visited

53a

the project area “to relocate and assess the rock cluster.” BLM 6. She found the rock cluster “in scattered

and disturbed condition surrounded by disturbed soil.”

Id. However, she walked the project area and did not

observe any “cultural features or objects that [were]

clearly historic or prehistoric.” Id. She wrote in her

notes that “[t]he rock cluster area itself does not present any additional indication as to its functional or

temporal nature and appears to still have no other associated objects or features such that it could be identified as a cultural resource.” Id.

ODOT completed demolition within the next few

days. It also retained the same contractor who previously rebuilt one of the pillars (after it was damaged

in an auto accident) to be onsite during their relocation. FHWA 6068. The pillars were damaged during

relocation, but the contractor repaired them. FHWA

5398; ACHP 171.

Plaintiffs filed this lawsuit on October 6, 2008, but

did not serve defendants until February 3, 2009. Complaint, ECF #1; Summons, ECF #0. They also did not

move for a preliminary injunction.

IV.Summary of Claims

In their motion for summary judgment, plaintiffs

contend defendants violated:

•

NEPA by (1) not performing a NEPA analysis

for the tree cutting permit and the right-ofway, (2) not preparing an EIS, (3) not considering a 1:5:1 slope alternative in the Dwyer

area, and (4) failing to prepare a supplemental

EA following communications with CGS in

early 2008;

54a

•

NHPA by (1) not performing a Section 106

analysis for the tree cutting permit and rightof-way, (2) delegating tribal consultation duties to ODOT and thus failing to perform any

tribal consultations, (3) failing to timely consult Yakama Nation, and (4) failing to identify

historic properties;

•

FLPMA by (1) destroying plaintiffs’ sacred

site, (2) issuing a tree cutting permit allowing

removal of old-growth trees, and (3) failing to

develop the Salem District Resource Management Plan in accordance with legally required

information-gathering procedures;

•

DTA by not conducting any Section 4(f) analysis;

•

NAGPRA by failing to (1) cease construction

when Philipek discovered the altar in July

2008, and (2) notify and consult Indian tribes

associated with the altar; and

•

The Free Exercise Clause by destroying plaintiffs’ sacred site.

Plaintiffs also bring claims under the Due Process

Clause and ARPA; however, neither party discusses

them. See Fourth Am. Compl ¶¶ 56, 92, ECF #223. The

viability of the due process claim is contingent on the

free exercise claim. If defendants did not violate the

plaintiffs’ right to freely exercise their religion, it necessarily follows that they could not have failed to provide the process that was due when not depriving

them of that right. Moreover, under NAGPRA, intentional excavation of Native American cultural items

from federal land requires an ARPA permit. 25 U.S.C.

§ 3002(c)(2). Thus, if plaintiffs do not invoke

55a

NAGPRA’s intentional-excavation provision, ARPA is

inapplicable.

V. Article III Standing

“A plaintiff seeking relief in federal court must establish the three elements that constitute the irreducible constitutional minimum of Article III standing,

namely, that the plaintiff has (1) suffered an injury in

fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Friends of

Santa Clara River v. U.S. Army Corps of Engineers, 87

F.3d 906, 918 (9th Cir. 2018) (citations and quotation

marks omitted). “A plaintiff must demonstrate standing for each claim he seeks to press and for each form

of relief that is sought.” Id. (quoting Town of Chester

v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017)) (alterations omitted). Defendants argue, for the third

time, that plaintiffs lack Article III standing because

a favorable decision would not redress their procedural injuries. Defs.’ Mot. Summ. J. 13–14, ECF #340.

“To establish . . . redressability, the plaintiff must

show that ‘the relief requested—that the agency follow

the correct procedures—may influence the agency’s ultimate decision.’” Friends of Santa Clara River, 887

F.3d at 918 (quoting WildEarth Guardians v. U.S.

Dept. of Agric., 795 F.3d 1148, 1156 (9th Cir. 2015)).

“In the NEPA context, plaintiffs may demonstrate redressability with a showing that the agency’s decision

[]‘could be influenced by the environmental considerations that NEPA requires an agency to study.’” Id.

(quoting Laub v. U.S. Dep’t of Interior, 342 F.3d 1080,

1087 (9th Cir. 2003)). “A plaintiff does not need to

show that the correction of the alleged procedural er-

56a

ror would lead to a decision more favorable to plaintiffs’ interests.” Id. (citing Laub, 342 F.3d at 1087).

“Rather, plaintiffs need only show a reasonable probability that the [defendant’s] decision “could be influenced by the environmental considerations that NEPA

requires an agency to study.” Id. at 920 (citing Laub,

342 F.3d at 1087). Put another way, the question “is

not whether a favorable decision is likely but whether

a favorable decision likely will redress a plaintiff’s injury.” Bonnichsen v. U.S., 367 F.3d 864, 873 (9th Cir.

2004) (citation omitted) (emphasis in original).

“While this is not a high bar to meet[,] the redressability requirement is not toothless in procedural injury cases.” Friends of Santa Clara River, 887 F.3d at

918 (quoting Salmon Spawning & Recovery All. v.

Gutierrez, 545 F.3d 1220, 1227 (9th Cir. 2008)) (original alterations and internal quotation marks omitted).

“Procedural rights ‘can loosen . . . the redressability

prong,’ not eliminate it.” Id. (quoting Summers v.

Earth Island Inst., 555 U.S. 488, 497 (2009)).

In January 2010, this court held that Logan and

the Alliance have standing to challenge defendants’

conduct and that it “need not determine whether the

remaining plaintiffs have standing to maintain the action.” Order 11–12, ECF #52 (citing Clinton v. City of

New York, 524 U.S. 417, 431 n.19 (1998), and Nat’l

Ass’n of Optometrists & Opticians LensCrafters v.

Brown, 567 F.3d 521, 523 (9th Cir. 2009)). Noting “5

U.S.C. § 706(2) of the APA confers broad equitable authority on courts to remedy violations of public law by

government agencies” when the public interest is involved, Order 5, ECF #52 (collecting cases), the court

held that plaintiffs’ claims were not moot because although the project was nearly complete, the expanded

57a

highway continued to harm plaintiffs’ “ongoing interests in [their] cultural and historical resources.” Id. at

8. Further, in June 2018, the court held plaintiffs had

Article III standing to bring a claim under RFRA. Order 3–4, ECF #312. The court stated, “Given Plaintiffs’

broad request for various forms of equitable relief, it is

likely that the Court could craft some relief that would

mitigate Plaintiff’s injury and improve their access to

the site and ability to exercise their religion.” Id. at 4

(citing Neighbors of Cuddy Mountain v. Alexander,

303 F.3d 1059, 1065–66 (9th Cir. 2002), and Feldman

v. Bomar, 518 F.3d 637, 642–43 (9th Cir. 2008)).

Plaintiffs argue these prior rulings are law of the

case and should not be disturbed. Pls.’ Reply 15, ECF

#345. Regardless, “[b]ecause ‘the need to satisfy Article III standing requirements persists throughout the

life of the lawsuit,’ if circumstances change such that

the plaintiffs . . . no longer possess standing, [the

court] must dismiss the affected claims.” Friends of

Santa Clara River, 887 F.3d at 917 (quoting Wittman

v. Personhuballah, 136 S. Ct. 1732, 1736–37 (2016))

(original alterations omitted).

No circumstances have changed since the 2018 order, which was limited to the RFRA claim. Since the

2010 order, the court dismissed ODOT on sovereignimmunity grounds, and ODOT completed the project.

However, neither of these changed circumstances prevent defendants from providing some effective relief.

Even if ODOT’s dismissal removed the ultimate mode

of redress from the court’s arsenal, and the court could

not “order the removal of portions of a highway project

under the APA,” Order 9, ECF #52 (citing West, 206

F.3d at 925), the remaining defendants may still provide some other form of effective relief.

58a

As the court put it in 2010, “If the Court determines

additional study of cultural, historical, or ecological resources is required by law, Defendants may, for example, be required . . . to take additional mitigating actions to protect cultural, ecological, or historical resources in accordance with any new agency findings.”

Order 10, ECF #52; see also Cantrell v. City of Long

Beach, 241 F.3d 674, 679 (9th Cir. 2001) (site demolition not enough to render NEPA case nonjusticiable).

Again, even if defendants came to the same ultimate

conclusions after additional review and plaintiffs’

harms ultimately went unmitigated, “the possibility of

effective relief is all that is required.” N.W. Envtl. Def.

Ctr. v. Gordon, 849 F.2d 1241, 1245 (9th Cir. 1988)).

Defendants’ additional arguments to the contrary are

inapposite. Thus, plaintiffs’ claims are redressable

and plaintiffs have Article III standing, except for

those claims in which plaintiffs challenge defendants’

consultations with federally recognized Indian tribes,

as explained infra, Section VI.A.

VI.Reconsideration of Prior Rulings

“All rulings of a trial court are ‘subject to revision

at any time before the entry of judgment.’” U.S. v.

Houser, 804 F.2d 565, 567 (9th Cir. 1986) (quoting

FED. R. CIV. P. 54(b)). A district court “may reconsider its prior rulings so long as it retains jurisdiction

over the case.” U.S. v. Smith, 389 F.3d 944, 948 (9th

Cir. 2004); see also E.E.O.C. v. Serrano’s Mexican Restaurants, LLC, 306 F. App’x 406, 407 (9th Cir. 2009)

(cited pursuant to Ninth Circuit Rule 36-3) (“There is

no strict prohibition against one district judge reconsidering and overturning the interlocutory order or

ruling of a prior district judge in the same case before

final judgment, though one judge should not overrule

59a

another except for the most cogent reasons.”). In fact,

a district court may sua sponte reconsider and rescind

a prior order without first requesting additional briefing from the parties. City of Los Angeles, Harbor Div.

v. Santa Monica Baykeeper, 254 F.3d 882, 887 (9th Cir.

2001). “The ‘law of the case” doctrine is “wholly inapposite to circumstances where a district court seeks to

reconsider an order over which it has not been divested

of jurisdiction . . . All rulings of a trial court are subject

to revision at any time before the entry of judgment.”

Guerra v. Paramo, 251 F. App’x 424, 425 (9th Cir.

2007) (cited pursuant to Ninth Circuit Rule 36-3).

Whether “the first decision was clearly erroneous” or

“an intervening change in the law has occurred” are

indisputably cogent reasons for revisiting prior rulings. Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.

1993), cert. denied 508 U.S. 951 (1993).

After contemplating the many issues presented by

the parties’ motions, and viewing them with fresh

eyes—only to find the analysis tangled—this court

found it necessary to revisit prior rulings, including

one ruling sua sponte. The court first addresses

whether plaintiffs may challenge defendants’ tribal

consultations, and then whether it should consider

plaintiffs’ extra- record evidence.

A. Plaintiffs do not have Article III standing

to challenge the adequacy of defendants’

government-to-government consultations

with Indian tribes.

The court previously held that because the

Klickitat Tribe and Cascade Tribe are not federally

recognized, Slockish and Jackson “have no right to

consultation under Section 106.” Findings and Recommendations 9 n.4, ECF #154 adopted by Order, ECF

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#171. The court also found that plaintiffs were not “additional consulting parties” because they failed to follow the process under Section 106 to obtain this status, that is, they failed to request in writing to be additional consulting parties under 36 C.F.R. §

800.3(f)(3). Id. at 13–14. These conclusions are correct.

The court also held, however, that because plaintiffs

“are members of the public who claim an interest in

the preservation of the historic sites at issue,” they

“fall within the zones of interests protected by the

NHPA and have standing to challenge the adequacy of

Federal Defendants’ consultation with federally recognized tribes, including the Yakama Nation, Warm

Springs, and Grande Ronde tribes.” Id. at 12; see also

id. at 14 (“plaintiffs have standing as interested members of the public . . . to allege a violation of the NHPA

for failing to consult with an Indian tribe”); id. at 18

(“This issue boils down to what information must be

conveyed by the Federal Defendants to the tribes to

satisfy the duty to consult.”). This ruling is both clearly

erroneous and contrary to binding intervening authority.

1. Clearly Erroneous

It would debase a tribe’s sovereignty for a tribal

member, even someone within the zone of interest under NHPA, to override a tribe’s government-to-government consultation authority in what would amount a

veto of the tribe’s official position. “Consultation with

an Indian tribe must recognize the government-to-government relationship between the Federal Government and Indian tribes.” 36 C.F.R. § 800.2(c)(2)(ii)(C)

(emphasis added). The rationale underpinning this

ruling is apparent from the record in this case.

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The record establishes that all interested federally

recognized Indian tribes approved of (or in Yakama

Nation’s case, belatedly acquiesced to) the Wildwood

to Wemme project. See FHWA 3820, 5652, 5955, 6544,

6910–11, 7194. When planning the project, ODOT

asked the Oregon SHPO which Indian tribes it should

consult. SHPO indicated Warm Springs, Grand

Ronde, and Siletz had interests in the area. ODOT met

with, sent documents to, and communicated with

these tribes continuously between 2005 and 2006 until

the project’s completion. The tribes were satisfied with

ODOT’s efforts in investigating all cultural and historic resources in the project area. After these consultations and a robust public comment period—including CGS’ singular comment that it owned the white

stone pillars—ODOT worked extensively with Grand

Ronde’s Cultural Protection staff to address additional

concerns even though the Revised EA and FONSI had

already been issued. See FHWA 5088, 5134–46, 5199,

5351, 5360, 7484.

ODOT and Grand Ronde specifically considered the

purported gravesite excavated by Pettigrew’s team in

1986. FHWA 5066, 5082. After much discussion,

Grand Ronde requested that a tribal monitor be present during construction, and ODOT agreed. See

FHWA 5351, 7484. When CGS began protesting the

project in early 2008, Grand Ronde told ODOT that

tribal members who are not employed in an official capacity with the tribe “can only represent their personal

perspectives” and that their opinions “are not supported by the Tribe unless a Tribal official speaks in

support.” FHWA 6910–11 (emphasis in original). Logan is a tribal member of Grand Ronde, but she does

not represent Grand Ronde in any official capacity. See

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FHWA 5652. Logan and CGS’ assertion of historical or

cultural significance in the Dwyer area was contrary

to Grand Ronde’s official position, and the professional

opinion of every archeologist who visited the site.

Grand Ronde explicitly told ODOT that Logan was not

representing Grand Ronde. FHWA 5652. Grand

Ronde’s official position was that ODOT and defendants had followed the Section 106 process and the tribe

had “no fault with what they have done.” Id. When a

local newspaper ran an article alleging ODOT planned

to intrude on sacred burial sites in the project area,

ODOT proactively sent the article to Grand Ronde and

Warm Springs to address any potential concerns.

FHWA 6515, 6565–68. Both tribes were satisfied with

ODOT’s response and efforts, and with the project as

envisioned in the Revised EA and FONSI. FHWA

6519, 6527. Given the modest scale and footprint of the

project, it is difficult to imagine more meaningful government-to-government consultations.

Granted, ODOT did not contact Yakama Nation

until after issuance of the Revised EA and FONSI.

Still, Yakama Nation Cultural Resource Manager

Meninick, the official representative of Yakama Nation, indicated he saw no reason for further consultation based on the negative results of the extensive archaeological investigations conducted. FHWA 7194.

That ODOT should have consulted Yakama Nation

from the outset is harmless error because Yakama Nation was ultimately consulted and approved of the project. The letter from Washines—who is not Yakama

Nation’s Cultural Resource Manager—invoked the

1991 Yakama Letter and generically opposed all construction in the “Mt. Hood Area,” but said nothing of

the Wildwood to Wemme project. FHWA 6949. The

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1991 Yakama Letter also generically opposed all construction near Mt. Hood. See FHWA 6303. Washines

had no comment after FHWA and ODOT responded

with a letter carefully explaining the extensive archeological investigations in the project area. FHWA

7274–75. More importantly, like Logan, Slockish and

Jackson are not official representatives of Yakama Nation and cannot stand in its shoes.

In sum, defendants owe consultation duties to federally recognized Indian tribes. 54 U.S.C. § 300309.

These consultations are government to government,

not government to tribal member, and especially not

government to tribal member over the objections of the

tribal government. See 36 C.F.R. § 800.2(c)(2)(ii)(C).

The court’s error appears to have resulted from

misreading a non-binding 2004 decision from the District of Montana, Montana Wilderness Ass’n v. Fry, 310

F. Supp. 2d 1127 (D. Mont. 2004). In Fry, BLM issued

three oil-and-gas leases and a pipeline right-of-way

without conducting any Section 106 process at all. Id.

at 1133. BLM issued the leases without producing an

EIS, and instead relied on a prior EIS that did not analyze oil-and-gas development. Id. at 1145 (characterizing the prior analysis as a ‘no look’ not a ‘hard look’

process). That EIS stemmed from an even earlier oiland-gas EA, but the record was unclear whether it was

subject to public comment or discussion. Id. at 1146.

Regardless, BLM never issued a FONSI for the EA, so

it was invalid. Id. at 1146.

The court also found that BLM failed “to provide

any notice to the public of its intention to evaluate the

environmental impacts of the pipeline right-of-way, or

to solicit comments from the public regarding the potential impacts of that action.” Id. at 1147. The Fry

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court found that a tribal member, Youpee, had standing to bring an NHPA claim, that BLM violated

NHPA, and remanded to BLM to “consult with all required entities, including nearby tribes.” Id. at 1157.

But Youpee had Article III standing under NHPA as a

member of the public who was not given an opportunity to participate in that capacity. The court held:

NHPA’s regulations require federal agencies to

provide interested members of the public reasonable opportunity to participate in the section

[106] process. 36 C.F.R. §§ 800.1(a), 800.2(a)(4),

(d)(1). Thus, any member of the public who can

demonstrate sufficient interest in the preservation of the historical lands at issue falls within

the zone of interests protected by the NHPA.

Youpee has sufficiently alleged facts supporting

his standing under Article III as well as the

zone of interests protected by the NHPA.

Id. at 1151 (emphasis added).

Fry’s instruction to BLM to prepare an EIS and

conduct a Section 106 process, including the requisite

tribal consultations, does not mean Youpee had Article

III standing to challenge the tribal consultations

themselves. Instead, Youpee had Article III standing

to challenge the lack of public notice and comment as

a member of the public, as no EIS had been prepared

in the first instance. Likewise, here, if defendants had

not issued an EA and FONSI, and had not conducted

the years-long public notice and comment process that

it did, the court could similarly remand to defendants

with instructions to prepare an EA with all the obligations that entails, including consultations with interested Indian tribes. However, here, defendants did

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conduct a years-long public notice and comment process.

2. Intervening Authority

More important is the Ninth Circuit’s affirmation

that a tribal monitor “does not have standing to bring

a claim for inadequate tribal consultation on behalf of

the Tribe. The regulations extend the right to government-to-government consultation to the Tribe, not its

individual members.” La Cuna De Aztlan Sacred Sites

Prot. Circle Advisory Comm. v. U.S. Dep’t of Interior,

642 F. App’x 690, 693 (9th Cir. 2016) (cited pursuant

to Ninth Circuit Rule 36-3). This decision is in line

with prior Ninth Circuit cases holding that NHPA consultation requirements extend only to federal recognized tribes or their designated representatives. E.g.,

Te-Moak Tribe of W. Shoshone of Nevada v. U.S. Dep’t

of Interior, 608 F.3d 592, 608 n.19 (9th Cir. 2010) (9th

Cir. 2010) (holding two non-Indian-tribe plaintiffs did

not have standing to challenge tribal consultation requirements because “neither group is a federally recognized tribe to which the NHPA’s consultation requirements extend nor do Plaintiffs point to evidence

in the record showing that either party was acting as

‘representatives designated or identified by the tribal

government’”); Snoqualmie Indian Tribe v. F.E.R.C.,

545 F.3d 1207, 1216 (9th Cir. 2008) (9th Cir. 2008) (citing NHPA’s definition of Indian tribe, 54 U.S.C. §

300309, and holding, “Because the Snoqualmie Indians were not federally recognized before the closure of

the administrative record, we need not evaluate the

sufficiency of FERC’s government-to- government consultation efforts”); see also La Cuna De Aztlan Sacred

Sites Prot. Circle Advisory Comm. v. W. Area Power

Admin., No. EDCV 12-00005 VAP, 2012 WL 6743790,

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at *6 (C.D. Cal. Nov. 29, 2012) (“[I]t is the tribe, as

principal, that holds the right, and the tribe who is injured by a statutory violation. Thus, only the tribe itself may bring a claim for failure to comply with the

consultation provision.”).

If ODOT’s consultation with Yakama Nation was

inadequate, Yakama Nation suffered an injury, not

plaintiffs. “Nothing short of the tribe’s intervention as

a plaintiff would satisfy the standing requirements.”

La Cuna, 2012 WL 6743790, at *6. That plaintiffs otherwise fall within NHPA’s zone of interests is inapposite.

B. Consideration of Extra-Record Evidence

Defendants filed the public portions of the administrative record in October 2010, and the sealed portions the following month. See ECF ##85, 86. They

supplemented the public administrative record in

March 2011. ECF #90.

Plaintiffs rely on ten deposition transcripts and

declarations outside of the administrative record,

which they prepared for the purpose of this litigation8

to support their motion for summary judgment. Defendants move to strike all of plaintiffs’ extra-record

evidence or to limit its consideration to the purposes

identified by the court when previously granting leave

Plaintiffs also submitted other documents in support of their

motion for summary judgment that were not created for this litigation. E.g., ECF #331-5 (BLM, Salem District Resource Management Plan (May 1995); ECF #331-20 (Oregon Resource Conservation Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-536); ECF

#331-27 (FHWA Federal-Aid Project Agreements (Jan. 2005June 2013); ECF #331-29 (Pub. Land Order 4537, 33 Fed. Reg.

17628 (1968)).

8

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to supplement. Mot. Strike 1–2, ECF #339. But first,

they seek relief from Local Rule 56-1(b).

1. Local Rule 56-1(b)

Local Rule 56-1(b) provides that “[r]ather than filing a motion to strike, a party must assert any evidentiary objections in its response or reply memorandum.”

Here, defendants filed a 14-page motion to strike in

addition to their full-length combined motion for summary judgment and response to plaintiffs’ motion for

summary judgment. ECF #339. They argue that Local

Rule 56-1(b) is not applicable because they are moving

to strike plaintiffs’ extra-record evidence under the

APA, not the federal rules of evidence, and even if it is

applicable, the court has discretion to allow the motion

to strike. Id. Plaintiffs counter that defendants’ separate motion to strike is improper under both Local

Rule 56-1(b) and Federal Rule of Civil Procedure

56(c)(2), defendants are simply trying to skirt the page

limit, and the court lacks discretion to allow the motion. Pls.’ Opp. Mot. Strike 2–4, ECF #344.

Rule 56(c)(2) provides that “[a] party may object

that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in

evidence.” Fed. R. Civ. P. 56. “The plain meaning of

[Rule 56(c)(2)’s language and its corresponding advisory committee notes] show that objecting to the admissibility of evidence supporting a summary judgment motion is now a part of summary judgment procedure, rather than a separate motion to be handled

preliminarily.” Campbell v. Shinseki, 546 F. App’x

874, 879 (11th Cir. 2013). Recent changes to Local

Rule 56-1(b) bring it in line with Rule 56(c)(2). On January 1, 2019, the District of Oregon modified Local

Rule 56-1(b), replacing a permissive “may” with the

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mandatory “must.” LR 56 Amendment History,

https://ord.uscourts.gov/index.php/rules-orders-andnotices/local-rules/civil-procedure/1244-2014-lr-56amendment-history (last accessed March 17, 2020).

Local Rule 56-1(b) makes clear what Federal Rule of

Civil Procedure 56(c)(2) implies: in the District of Oregon, a party must assert any evidentiary objections in

its summary judgment response or reply brief instead

of filing a separate motion to strike. Thus, defendants’

motion is procedurally improper.

The district’s local rules have the “force of law.”

Hollingsworth v. Perry, 558 U.S. 183, 191 (2010) (quoting Weil v. Neary, 278 U.S. 160, 169 (1929)); In re Corrinet, 645 F.3d 1141, 1146 (9th Cir. 2011) (“District

judges must adhere to their court’s local rules, which

have the force of federal law.”). However, “the district

court has broad discretion to depart from the strict

terms of the local rules where it makes sense to do so

and substantial rights are not at stake.” Prof’l Programs Grp. v. Dep’t of Commerce, 29 F.3d 1349, 1353

(9th Cir. 1994). “A departure [from the local rules] is

justified only if the effect is ‘so slight and unimportant

that the sensible treatment is to overlook it.’” Id. (quoting Martel v. County of Los Angeles, 21 F.3d 940, 947

n.4 (9th Cir. 1994)) (original alteration omitted) (subsequent history of Martel omitted).

When reviewing agency action under the APA, “the

party seeking to admit extra-record evidence initially

bears the burden of demonstrating that a relevant exception applies.” Locke., 776 F.3d at 992–93; Animal

Defense Council v. Hodel, 840 F.2d 1432, 1437 (9th Cir.

1988). Plaintiffs must make this showing regardless of

the adequacy of defendants’ evidentiary objections.

Otherwise stated, even if defendants’ motion to strike

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were denied, the question of whether the court can rely

on plaintiffs’ extra-record evidence would still need to

be answered. Under these circumstances, whether Local Rule 56-1(b) is applied would not affect a substantial right and it makes sense to grant defendants relief

from the rule. See Prof’l Programs Grp., 29 F.3d at

1353. Accordingly, the court moves on to consider the

merits of defendants’ motion to strike.

2. Prior Orders and Plaintiffs’ Documents

In March 2012, the court heard oral argument on

plaintiffs’ renewed motion to supplement the administrative record and compel discovery (ECF #107).

Minutes of Proceedings, ECF #137. The court allowed

plaintiffs to submit “affidavits to support standing under NAGPRA.” Id.

In May 2012, plaintiffs submitted four declarations

in response to the court’s order: Declaration of Hereditary Chief Wilbur Slockish in Support of Standing

(ECF #146), Declaration of Carol Logan in Support of

Standing (ECF #147), Declaration of Michael Jones in

Support of Standing (ECF #148), and Declaration of

Hereditary Chief Johnny Jackson in Support of Standing (ECF #151).

In August 2012, the court granted in part and denied in part plaintiffs’ renewed motion to supplement

the record and compel discovery (ECF #107) as follows:

(1) The Court GRANTS Plaintiffs’ Renewed Motion to Supplement the Record as to Plaintiff[s’] Third Claim

(a) under NHPA as to testimony by

Jones and Nixon to clarify the area

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Yallup designated in 1991 as containing Native American burial

sites and

(b) under NAGPRA as to

(i) affidavits establishing Plaintiffs’

standing as traditional religious

leaders and identifying “sacred

objects” within the Project area

and

(ii) testimony by Jones describing

the information he communicated to ODOT and the Federal

Defendants that is not reflected

in the Administrative Record

and confirming Larry Dick’s

communication to the BLM in

1990.

(2) The Court DENIES the remainder of

Plaintiffs’ Motion.

Order 7, ECF #171. The parties then entered settlement negotiations, and the case was stayed until mid2015.

About a year after litigation resumed, plaintiffs

submitted two 9 supplemental declarations: Supplemental Decl. of Hereditary Chief Johnny Jackson in

Support of Standing (ECF #242) and Supplemental

Decl. of Hereditary Chief Wilbur Slockish in Support

of Standing (ECF #243). The parties each moved for

summary judgment on plaintiffs’ RFRA claim, and

plaintiffs submitted deposition transcripts in support:

Plaintiffs submitted several other declarations, but do not

rely on that testimony here. See ECF ##244, 245, 246.

9

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Transcript of Deposition of Wilbur Slockish (ECF

#287-4), Transcript of Deposition of Carol Logan (ECF

#287-3), and Transcript of Deposition of Michael Jones

(ECF #287-7). The court considered these transcripts

when ruling on plaintiffs’ RFRA claim, which was ultimately dismissed. Findings and Recommendations 5

n.1, 13 n.5, ECF #300; Order, ECF #312. The court also

denied plaintiffs’ motion for discovery on plaintiffs’

free exercise claim, foreclosing any additional attempt

to supplement the record. See Opinion and Order, ECF

#325. Finally, plaintiffs submitted the declaration of

Tx’li-Wins (Larry Dick) in support of the present motion for summary judgment. Declaration of Tx’li-Wins

(Larry Dick), ECF #331-42.

3. Standards

“In general, a court reviewing agency action under

the APA must limit its review to the administrative

record.” San Luis & Delta-Mendota Water Auth. v.

Locke, 776 F.3d 971, 992 (9th Cir. 2014) (citing Camp

v. Pitts, 411 U.S. 138, 142 (1973)); 5 U.S.C. § 706.

“[T]he focal point for judicial review should be the administrative record already in existence, not some new

record made initially in the reviewing court.” Fla.

Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985)

(quoting Camp, 411 U.S. at 142) (alteration in original). “This rule ensures that the reviewing court affords sufficient deference to the agency’s action.”

Locke, 776 F.3d at 992. “Were the federal courts routinely or liberally to admit new evidence when reviewing agency decisions, it would be obvious that the federal courts would be proceeding, in effect, de novo rather than with the proper deference to agency processes, expertise, and decision-making.” Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005).

72a

In the Ninth Circuit,

a reviewing court may consider extra-record evidence where admission of that evidence (1) is

necessary to determine whether the agency has

considered all relevant factors and has explained its decision, (2) is necessary to determine whether the agency has relied on documents not in the record, (3) when supplementing the record is necessary to explain technical

terms or complex subject matter, or (4) when

plaintiffs make a showing of agency bad faith.

Locke, 776 F.3d at 992–93 (quoting Land Council, 395

F.3d at 1030) (internal quotation marks omitted).

“These exceptions are to be narrowly construed, and

the party seeking to admit extra- record evidence initially bears the burden of demonstrating that a relevant exception applies.” Id.; Pinnacle Armor, Inc. v.

United States, 923 F. Supp. 2d 1226, 1232 (E.D. Cal.

2013) (“The party seeking supplementation bears the

burden of overcoming this presumption by ‘clear evidence.’”). “Consideration of the evidence to determine

the correctness or wisdom of the agency’s decision is

not permitted, even if the court has also examined the

administrative record. If the court determines that the

agency’s course of inquiry was insufficient or inadequate, it should remand the matter to the agency for

further consideration and not compensate for the

agency’s dereliction by undertaking its own inquiry

into the merits.” Asarco, Inc. v. U.S. Envtl. Prot.

Agency, 616 F.2d 1153, 1160 (9th Cir. 1980).

4. Analysis

Plaintiffs argue that their submission of extra-record evidence complies with the court’s prior orders,

73a

which applied the first exception to the rule against

extra-record evidence, i.e., when “necessary to determine if the agency has considered all factors and explained its decision.” Pls.’ Reply 17, ECF #345.10 Plaintiffs flatly assert that defendants “fail to show the decision was wrong at all, much less a clear judgment of

error,” but do not explain why application of this exception was correct in the first instance. Id. All this is

to say, plaintiffs do not make a case for the court’s consideration of any extra-record evidence here on the

cross-motions for summary judgment. In any event,

with one exception,11 the court’s prior orders allowing

plaintiffs to supplement the record were clearly erroneous because the record sufficiently explains defendants’ decisions and supplementation would duplicate

and recharacterize matters already in the record or

otherwise result in an unlawful de novo review of the

agency action.

The Ninth Circuit has recognized and even applied

what this court previously termed the “NEPA exception”:

In the Ninth Circuit, when claims are brought

under the NEPA, the first of these four circumstances allows expansion of the record to consider whether the agency “neglected to mention

Plaintiffs do not respond to the substance of defendants’ motion to strike in their response, instead opting to address the arguments in their summary judgment reply brief. Pls.’ Opp. Mot.

Strike 4, ECF #344.

10

The order allowing submission of affidavits “to establish

plaintiffs’ standing as traditional religious leaders under

NAGPRA” is clearly proper. Minutes of Proceedings, ECF #137;

Order ¶ 1(b)(i), ECF #171.

11

74a

a serious environmental consequence, failed adequately to discuss some reasonable alternative

or otherwise swept stubborn problems or serious criticism . . . under the rug.”

Findings and Recommendations 6, ECF #154, adopted

by Order, ECF #171 (quoting Animal Defense Council,

840 F.2d at 1437). What the Ninth Circuit articulated

in Animal Defense Council is merely the “all relevant

factors” exception, which applies whether it is a NEPA

case or a different statutory context. See Animal Defense Council, 840 F.2d at 1437.

In National Audubon Society v. U.S. Forest Service,

the Ninth Circuit affirmed a district court’s consideration of expert witness testimony under Animal Defense

Council’s articulation of the “all relevant factors’ exception where the plaintiff alleged “the Forest Service

completely ignored the roadless nature of the timber

sales when it prepared the environmental assessments.” 46 F.3d 1437, 1448 (9th Cir. 1993) (emphasis

added).

Therefore, because the Audubon Society alleged

the Forest Service “neglected to mention a serious environmental consequence” in preparing

the environmental assessments on the four

challenged timber sales, we hold the district

court properly considered Dr. Noss’s affidavit

even though it is not contained within the administrative record.

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Id. Similarly, in a case previously cited by this court,12

Inland Empire Public Lands Council v. U.S. Forest

Service, the Ninth Circuit applied the “all relevant factors” exception in a case that had “highly technical

matters,” which the agency neglected to mention. 88

F.3d 754, (9th Cir. 1996) (quoting Asarco, 616 F.2d at

1160).

By contrast, here, plaintiffs’ extra-record evidence

does not pertain to highly technical matters or address

something defendants completely ignored or neglected

to mention. Implicit in the court’s prior orders was the

idea that allowing supplementation might provide information about how defendants failed to communicate to Yakama Nation or the other Indian tribes.

However, as discussed above, plaintiffs may not challenge defendants’ tribal consultations; therefore, the

primary justification for supplementation falls away.

The record also reveals that, in the 1980s and ‘90s,

defendants repeatedly investigated CGS’ claims regarding the archeological, historical, and cultural significance of the project areas—including the purported

gravesite. The record contains the transcript of

ODOT’s 1991 meeting with Yallup during which he

told ODOT there were burial sites in archeological,

historical, and cultural. Later archeological surveys

investigated these claims, and the results were reproduced in reports, which were incorporated and examined in the Wildwood to Rhododendron EIS, the US 26

Rhododendron to OR 35 Junction EIS, and the Wildwood to Wemme EA. The record contains hundreds of

See Findings and Recommendations 27, ECF #154, adopted

by Order, ECF #171 (alteration in original) (quoting Inland Empire, 88 F.3d at 760).

12

76a

pages of information provided by Jones through

CFASH and CGS in opposition to all projects in the

area. And, importantly, the record contains more than

enough evidence to show ODOT and defendants investigated the presence of burial sites and cultural items

in the project area, including via consultation with the

Grand Ronde, Warm Springs, Siletz, and Yakama Nation.

Thus, supplementation of the record would not reveal whether defendants ignored the alleged archeological, historical, and cultural significance of these

sites, but would instead directly challenge the agency’s

findings about that evidence. Friends of the Payette v.

Horseshoe Bend Hydroelectric Co., 988 F.2d 989, 997

(9th Cir. 1993) (upholding decision to exclude extrarecord witness testimony where the “administrative

record sufficiently explained the Corp’s decision and

showed that the agency considered the relevant factors”); Rybachek v. EPA, 904 F.2d 1276, 1296 n.25 (9th

Cir. 1990) (“The original record here adequately explains the basis of the EPA’s decision and demonstrates that the EPA considered the relevant factors.”). However subtle, this distinction makes or

breaks the application of the “all relevant factors” exception to the rule that “a court reviewing agency action under the APA must limit its review to the administrative record.” See Locke, 776 F.3d at 992. To the

extent the court’s prior orders allowing supplementation impermissibly teed up the present motions for a

de novo review of the propriety of defendants’ decision,

those orders are clearly erroneous and should be rescinded. See Envtl. Def. Fund, Inc., 657 F.2d at 286

(holding that “a judicial venture outside the record”

77a

can “never, under Camp v. Pitts, examine the propriety of the [agency’s] decision itself”). Although the documents plaintiffs seek to include “‘might have supplied a fuller record,’ they do not ‘address issues not

already there.’” 13 Sw. Ctr. for Biological Diversity v.

U.S. Forest Serv., 100 F.3d 1443, 1451 (9th Cir. 1996)

(quoting Friends of the Earth v. Hintz, 800 F.2d 822,

829 (9th Cir. 1986)).

Moreover, plaintiffs’ declarations go far beyond attempting to identify or explain a “relevant factor” that

defendants’ purportedly ignored, and instead attempt

to undermine evidence of their own conduct in the record. For example, Logan, Jones, and Larry Dick

(“Dick”) all declare that Logan, Dick, and Rip Lone

Wolf worked with Jones in the 1980s and ‘90s to identify traditional use areas and sacred sites along US 26,

but claim they did not comment publicly for fear the

government or people who supported widening the

highway would deliberately destroy the sites, including the Dwyer area, undermine evidence of their own

conduct. Logan Decl. ¶¶ 37–42, ECF #147; Jones Decl.

¶¶ 27-31, ECF #148, Dick Decl. ¶¶ 257–294, ECF

#331-42 (“Dick Decl.”). The record contains extensive

documentation of ODOT and defendants’ interactions

with Jones and archeological investigations of the very

site at issue. If the court considered these statements,

it would not unveil some factor that defendants ig-

Moreover, where the record does not reveal a rational basis

for agency action, and the action is therefore arbitrary and capricious, the proper remedy is to remand with instruction for further

explanation, not to conduct a de novo review with plaintiffs’ postdecisional evidence. See Asarco, 616 F.2d at 1160.

13

78a

nored but would instead imbue new meaning and recharacterize record evidence of ODOT and Jones’ interactions.

Another example is Jones’ declaration in which he

states that during the 1991 meeting, You can collapse

parts of the document and focus on the text you want.

If you need to stop reading before you reach the end,

Word remembers where you left off - even on another

device.14 The word Dwyer does not appear anywhere

in the transcript. When Bartel pushed Yallup to “be a

little more specific,” Jones interrupted and said, “we’re

not going to get down to specifics. If you want like pinpoints, you know, we’re not going to do [that].” FHWA

5568. Later during the meeting, Jones and CGS’ attorney, Michael Nixon, both emphasized that construction north of the highway would not be problematic.

FHWA 5591–95. Jones further declares that after the

meeting, Yallup told him: “I gave the government

workers enough information to allow them to do their

job and keep the highway away from these sacred

places. They can no longer claim they did not know

what was there because, as a leader and Elder of the

Yakama Nation, I have now told them.” Jones Decl. ¶

42, ECF #148. Admitting Jones’ declaration would allow Jones to impermissibly recharacterize the transcript, which is already in the record.

A final example goes to the heart of plaintiff’s allegations. In a declaration dated December 2018, Dick

declares that he showed Jones “cultural and religious

sites in the Mount Hood Area,” You canlllll lllll collapse

parts of the documlllllllent Dick Decl. ¶ 260, ECF #331-42.

CGS sent a copy of the transcript to FHWA in February 2008.

FHWA 5562.

14

79a

Stone altars were the focal point of the burial

sites [of] the area. If people didn’t know what

they were, they would move on. Only those who

followed the Native way would use them for

prayers and ceremony. Altars were used in conjunction with the burials in the area. There

were stone markers but they did not exactly

pinpoint where the burials were.

Id. ¶¶ 265–66. Dick further declares that he did not

tell Jones that the stone mound was actually an altar

“until after it was vandalized,” which is why Jones

“was still referring to it as a grave.” Id. ¶¶ 283–84.

The record reveals that defendants investigated

Jones’ claim that this was a gravesite and found no

humans remains: public comments about a gravesite,

FHWA 487, Jones’ inquiry about a “pioneer grave,”

FHWA 577, the 1986 CFASH letter threatening suit

“if the potential gravesite is further disturbed,” FHWA

5079, Jones’ documentation that he was “able to feel

at peace that the Native American or pioneer

gravesite . . . will not be disturbed by the widening” in

the 1987 Kuehn–Jones Agreement, FHWA 5436, the

many archeological investigations of the site, including those resulting in Pettigrew’s 1986 Excavation Report, FHWA 303–05, 487, the March 1992 note regarding how the “rock stack (described as a possible burial

cairn)” was clearly not a historic resource, ACHP 219,

O’Grady’s pedestrian surveys confirming Pettigrew’s

findings, FHWA 2410; ACHP 57, and Roedel and

Bottman’s many communications with the official cultural resource managers of Grand Ronde (Schultz and

Thorsgard), Warm Springs (Bird), Siletz (Kentta), and

Yakama Nation (Meninick) confirming the tribes’ official positions that the Dwyer area and rock feature

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were not culturally significant. See FHWA 2416, 3820,

5066, 5088, 5351, 5465, 5646, 5652, 5666–69, 5676,

5726–28, 5973, 6515, 6527, 6544, 6565–68, 6911, 7194,

7274–75. Dick’s recent testimony that the rock feature

is actually a stone altar and that he misled Jones in

the 1980s and ‘90s, thus qualifying and undermining

all of Jones and ODOT’s interactions, constitutes postdecision information that may not be advanced as “a

new rationalization either for sustaining or attacking

an agency’s decision.” Sw. Ctr. for Biological Diversity

v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.

1996) (citing Association of Pac. Fisheries v. EPA, 615

F.2d 794, 811–12 (9th Cir. 1980).

Not all of plaintiffs’ extra-record evidence suffers

from the same defects; however, it does not otherwise

fit within the narrowly construed exceptions to the

rule that agency action must be judged on the record.

Camp, 411 U.S. at 142. And aside from flatly asserting

the prior order was not clearly erroneous, plaintiffs do

not even attempt to carry their burden on summary

judgment. See Locke, 776 at 992; Hodel, 840 F.2d at

1437. Other than the small portions of the declarations

that have been proffered to establish standing, plaintiffs’ extra-record evidence cannot be considered by

this court without running afoul of the APA and the

required deference due to agency decision-making.

VII.

Defendants’ Affirmative Defenses: Laches

and Waiver

The court addresses two preliminary questions,

then laches and waiver.

A. Waiver of Affirmative Defenses

Defendants contend that (1) the doctrine of laches

bars plaintiffs’ claims and (2) plaintiffs waived their

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claims because they did not raise them during the administrative process. Defs.’ Mot. Summ. J. 4–7, ECF

#340. Plaintiffs argue that defendants waived their

right to assert the affirmative defenses of laches and

waiver because they did not plead them in their answer. Pls.’ Reply Supp. Mot. Summ. J. 6, ECF #346.

On January 21, 2016, defendants answered the

Fourth Amended Complaint and alleged four defenses:

lack of standing, lack of subject matter jurisdiction,

failure to state a claim, and statute of limitations. Ans.

Fourth Am. Compl., Affirmative Defenses, ECF #225.

Plaintiffs then moved to strike. Mot. Strike 3–4, ECF

#226. Instead of responding to the motion to strike, defendants amended their answer to omit all defenses,

but stated that they “maintain the right to assert any

non-waivable or jurisdictional defense to the claims

asserted and do not relinquish the right to challenge

in this Court or on appeal Plaintiffs’ failure to state a

claim as to any cause of action.” Am. Answer 19, ECF

#238. Order, ECF #239.

Rule 8 provides that “[i]n responding to a pleading,

a party must affirmatively state any avoidance or affirmative defense, including . . . laches . . . [and]

waiver.” Fed. R. Civ. P. 8(c)(1). Plaintiffs cite a leading

treatise for the proposition that “failure to plead an affirmative defense as required by Federal Rule 8(c) results in the waiver of that defense and its exclusion

from the case.” Pls.’ Reply 3, ECF #345 (citing 5 FED.

PRAC. & PROC. CIV. § 1278 (3d ed.). But the same

treatise also acknowledges that “the waiver rule that

has developed in the practice under Rule 8(c) is not applied automatically with regard to omitted affirmative

defenses and as a practical matter there are numerous

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exceptions to it based on the circumstances of particular cases.” 5 FED. PRAC. & PROC. CIV. § 1278 (3d

ed.). In the Ninth Circuit, “[a]s long as the plaintiff is

not prejudiced, affirmative defenses that were not

pleaded in an answer may be raised for the first time

on summary judgment.” McGinest v. GTE Serv. Corp.,

247 F. App’x. 72, 75 (9th Cir. 2007) (collecting cases

and citing Camarillo v. McCarthy, 998 F.2d 638, 639

(9th Cir. 1993)) (cited pursuant to Ninth Circuit Rule

36-3); Sharer v. Oregon, 481 F. Supp. 2d 1156, 1164–

65 (D. Or. 2007), adhered to on reconsideration, 04-CV1690-BR, 2007 WL 9718957 (D. Or. Apr. 18, 2007)

(quoting Camarillo, 998 F.2d at 639).

Plaintiffs are not prejudiced by defendants’ failure

to plead waiver and laches. Thus, defendants may

raise these affirmative defenses for the first time on

summary judgment.

B. Plaintiffs Are Single Entity

Another preliminary question is whether plaintiffs

should be treated as a single entity for purposes of the

laches doctrine. Apache Survival Coalition v. U.S., 21

F.3d 895, 907 (9th Cir. 1994). In Apache Survival Coalition, the Ninth Circuit held that the San Carlos

Apache Tribe and Apache Survival Coalition were the

same entity, where the coalition was composed of

members of the tribe and the coalition’s stated purpose

was to protect and preserve traditional Apache culture. Id.

Here, CGS and the Alliance are both named plaintiffs. Jones is not a named plaintiff, but the record

shows that he was the one who personally interacted

with ODOT and defendants in the 1980s and ‘90s and

before issuance of the Wildwood to Wemme EA and

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FONSI. Jones is the curator and co-founder of plaintiff

CGS, of which Logan is a co-founder and all individual

plaintiffs are members, and Jones’ conduct is essential

to plaintiffs’ case. Logan Decl. ¶¶ 20, 37–38, ECF #147;

Jones Decl. ¶ 5, ECF #148. Logan only began personally interacting with ODOT and defendants in late

2007, and Slockish and Jackson only entered the picture in May 2008 when Jones sent their memoranda

to ACHP. ACHP 117–35. Moreover, Logan, Slockish,

Jackson, and Jones are all members of the Alliance.

Slockish Decl. ¶ 3, ECF #146; Logan Decl. ¶ 20, ECF

#147; Jones Decl. ¶ 5, ECF #148; Jackson Decl. ¶ 3,

ECF #151. Thus, plaintiffs are a single entity.

C. Analysis of Affirmative Defenses

Except for the NAGPRA and free exercise claims

discussed infra, Parts VIII and IX, plaintiffs’ claims

are barred by laches and waiver.

1. Laches

The equitable defense of laches protects defendants

against unreasonable and prejudicial delay in commencing suit. SCA Hygiene Products Aktiebolag v.

First Quality Baby Products, LLC, 137 S. Ct. 954, 959

(2017).

Although the application of laches depends on

the facts of the particular case and is consigned

as an initial matter to the sound discretion of

the district court judge, that discretion must be

exercised within limits. To demonstrate laches,

a party must establish (1) lack of diligence by

the party against whom the defense is asserted,

and (2) prejudice to the party asserting the defense.

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Apache Survival Coalition, 21 F.3d at 905 (internal citations, quotation marks, and emphasis omitted).

Laches is employed sparingly in suits brought to vindicate the public interest, such as cases involving

NHPA and NEPA. Id.

Citing SCA Hygiene Products Aktiebolag, plaintiffs

argue that because they sued within the APA’s sixyear statute of limitations, the laches defense is categorically unavailable to defendants. Pls.’ Reply 8, ECF

#345.15 In an APA action, the six-year statute of limitations accrues when the “final agency action” issues.

See Hells Canyon Pres. Council v. United States Forest

Serv., 593 F.3d 923, 931 (9th Cir. 2010); 5 U.S.C. § 704;

28 U.S.C. § 2401(a). To be “final,” an agency action

“must mark the consummation of the agency’s decision-making process—it must not be of a merely tentative or interlocutory nature.” Bennett v. Spear, 520

U.S. 154, 177–78, (1997).

Here, defendants’ issuance of the Revised EA and

FONSI on January 25, 2007, marked the consummation of their decision-making process. Plaintiffs sued

less than two years later in October 2008, years before

the statute of limitations had run. However, plaintiffs

SCA Hygiene concerned “the relationship between the equitable defense of laches and claims for damages that are brought

within the time allowed by a statute of limitations.” 137 S. Ct. at

959. The Supreme Court held laches cannot be invoked to bar

legal relief sought within the period prescribed by a statute of

limitations. Id. The defendants argued that the collapse of equitable courts and courts of law in 1938 likewise expanded the application of laches to all forms of relief, but the Supreme Court

reversed the Federal Circuit to hold otherwise. Thus, implicit in

SCA Hygiene is not that laches is categorially unavailable to

claims for equitable relief brought within the statute of limitations; rather, just the opposite.

15

85a

seek only equitable relief, not legal relief. “As to equitable relief, in extraordinary circumstances, laches

may bar at the very threshold the particular relief requested by the plaintiff.” Petrella v. Metro- GoldwynMayer, Inc., 572 U.S. 663, 667–68 (2014). Thus, the

laches defense is available to defendants, notwithstanding the fact that plaintiffs filed suit within the

statute of limitations.

a. Diligence

To determine whether a party lacked diligence in

pursuing its claims, courts consider (1) whether the

party attempted to communicate its position to the

agency before filing suit, (2) the nature of the agency

response, (3) the extent of actions, such as preparatory

construction, that tend to motivate citizens to investigate legal bases for challenging an agency action, (4)

the length of the delay, and (5) the circumstances surrounding the delay. Save the Peaks Coalition v. U.S.

Forest Serv., 669 F.3d 1025, 1031 (9th Cir. 2012).

Plaintiffs are correct that the record does not reveal

defendants made the sort of consistent, repeated attempts to consult with them like those made by the

agency defendants in Apache Survival, 21 F.3d at 905,

and Standing Rock Sioux Tribe v. U.S. Army Corps of

Engineers, 239 F. Supp. 3d 77, 87 (D.D.C. 2017). However, the plaintiffs in those cases were federally recognized Indian tribes to whom the defendant agencies

owed consultation duties. 54 U.S.C. § 300309; 36

C.F.R. § 800.4. Even if ODOT and defendants knew of

CGS when they began planning the Wildwood to

Wemme project, they were under no legal obligation to

extend to CGS the same sort of solicitude that they

had previously extended to Jones. E.g., BLM 63

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(ODOT declining Jones’ request for mediation). During prior projects, ODOT repeatedly met with Jones

outside the normal public-comment process to understand CFASH and CGS’s concerns. E.g., FHWA 5404–

11 (negotiating the 1987 Kuehn–Jones Agreement).

However, these interactions did not elevate Jones or

CGS above any other member of the public for the purpose of subsequent projects. CGS could have requested

in writing to be an additional consulting party in the

Section 106 process under 36 C.F.R. § 800.3(f)(3), but

it did not.

ODOT conducted a robust public outreach effort,

even though the project had a relatively modest footprint. ODOT invited CGS to three public meetings before issuing the Daft EA. FHWA 2153 (March 2005

open house), 2158 (September 2005 open house), 2159

(February 2006 open house). Jones knew of the Draft

EA and requested a copy. FHWA 4102 (April 2006).

ODOT sent CGS another newsletter and a final project

notice before the Revised EA and FONSI were issued.

FHWA 2160 (September 2006), 5006 (February 2007).

CGS clearly knew of the project and could have expressed its concerns during the public comment period

like it did during the Wildwood to Rhododendron project and US 26 Rhododendron to OR 35 Junction project. In fact, CGS did comment—on the protection and

relocation of the white stone pillars— and defendants

addressed those concerns. FHWA 4977.

Moreover, CGS is not an unsophisticated entity.

Jones commented extensively during prior projects,

revealing an advanced knowledge of the environmental and archeological consequence of the projects and

of ODOT’s legal obligations. Congress coordinated

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NEPA and NHPA compliance and designed the administrative process to give federal agencies and their

agency officials the chance to make informed decisions, with information from all interested parties. Defendants could have addressed and accommodated

plaintiffs’ concerns as they did with Jones and CFASH

during the prior projects, but plaintiffs did not avail

themselves of the many opportunities to comment

publicly. In fact, ODOT did accommodate CGS by relocating and repairing the white stone pillars even

though it determined they lacked distinction and integrity and were not eligible for the National Register.

FHWA 4496.

Finally, ODOT archeologist Philipek visited the

site at the end of July 2008 and found the rock feature

‘in scattered and disturbed condition.” BLM 6. ODOT

finished demolition less than a week later, yet plaintiffs did not file suit until after construction was long

underway in October 2008 and did not even serve defendants until February 2009, two years after issuance of the Revised EA and FONSI. And they did not

move for a preliminary injunction to halt construction.

For all of these reasons, plaintiffs lacked diligence

in pursuing their claims.

b. Prejudice

Defendants argue they would suffer undue prejudice “because the turn lane has been constructed for

more than a decade.” Defs.’ Mot. Summ. J. 10, ECF

#340. However, “prejudice must be judged as of the

time the lawsuit was filed, thereby eliminating consideration of post-lawsuit expenditures and progress in

constructing the [project].” Save the Peaks Coal., 669

F.3d at 1033.

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Regardless, the “primary concern is whether the

harm that Congress sought to prevent through the relevant statutory scheme is now irreversible, or is reversible only at undue cost to the relevant project.”

Apache Survival Coal., 21 F.3d at 912 (citations omitted). Here, Section 106’s public notice and comment requirements were designed so that all interested parties could raise their concerns at one time, before the

agency brought its expertise to bear and made an informed decision. This requires the agency to engage in

a delicate balance, as interested parties take opposing

positions. Remanding for the agency to consider concerns that could have been raised but were not would

result in undue cost and undercut the purpose of Section 106’s notice and comment requirements. See

Standing Rock, 239 F. Supp. 3d at 87 (finding prejudice when construction was nearly complete, and

plaintiff Indian tribes had remained silent during Section 106 process after Army Corps invited their views).

Moreover, in their response to defendants’ motion

for summary judgment, plaintiffs submit that they

“seek a variety of relief far short of removing the highway—such as removing the earthen berm north of the

highway, replanting trees, and reconstructing the

stone altar.” Pls.’ Reply 10, ECF #345. But plaintiffs

clearly sought a return to the status quo when they

filed suit. Findings and Recommendations 22, ECF

#48 (contemplating ordering removal of the offending

portion of the highway). In any event, the court has

already found the project does not burden plaintiffs’

practice of religion. Order, ECF #312. And ODOT specifically chose the “gentler, more transversable[sic]

slope” with the express purpose of replanting “new

small trees and other native vegetation . . . to mitigate

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for visual impact.” FHWA 4972. The costs of altering

the project or undertaking a new administrative process far outweigh whatever benefits might accrue to

plaintiffs resulting from that process. Thus, laches

bars plaintiffs’ claims.

2. Administrative Waiver and Exhaustion

Plaintiffs’ claims are described in detail supra in

Section IV. Because plaintiffs failed to raise these specific concerns and criticisms during the administrative

process, and because these were not obvious flaws

about which defendants had independent knowledge,

plaintiffs’ claims are waived.16

“A party waives arguments that are not raised during the administrative process.” N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1081

(9th Cir. 2011); Vermont Yankee Nuclear Power Corp.

16 Additionally, defendants assert that plaintiffs’ “claims” raised

for the first time on summary judgment are waived. Defs.’ Mot.

Summ. J. 12–13, ECF #340. Plaintiffs counter that with few exceptions, they raise only new legal theories, and that they sufficiently pleaded the underlying factual allegations. While “summary judgment is not a procedural second chance to flesh out inadequate pleadings[, i.e., factual allegations],” Wasco Prods., Inc.

v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006), “a

complaint need not identify the statutory or constitutional source

of the claim raised in order to survive a motion to dismiss.” Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008); Pickern v. Pier 1

Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006) (barring

assertion of “new factual allegations” on summary judgment).

Suffice it to say, plaintiffs only settled on some of their specific

concerns after they filed suit—including up until the moment

they filed their motion for summary judgment. However, the

court need not reach this issue because plaintiffs otherwise

waived their claims by failing to raise them during the administrative process.

90a

v. Natural Resources Defense Council, Inc., 435 U.S.

519, 553 (1978) (“it is still incumbent upon intervenors

who wish to participate to structure their participation

so that it is meaningful, so that it alerts the agency to

the intervenors’ position and contentions.”). The Ninth

Circuit has “defined [this] exhaustion requirement

broadly: ‘The plaintiffs have exhausted their administrative appeals if the appeal, taken as a whole, provided sufficient notice to the agency to afford it the opportunity to rectify the violations that the plaintiffs alleged.’” Great Basin Mine Watch v. Hankins, 456 F.3d

955, 965 (9th Cir. 2006) (quoting Native Ecosystems

Council v. Dombeck, 304 F.3d 886, 899 (9th Cir. 2002)).

This includes identifying issues with enough specificity to separate them from “more general issues” otherwise raised during the administrative process. Oregon

Nat. Desert Assn. v. Jewell, 840 F.3d 562, 571 (9th Cir.

2016); Dept. of Transp. v. Pub. Citizen, 541 U.S. 752,

764 (2004) (“Persons challenging an agency’s compliance with NEPA must ‘structure their participation so

that it alerts the agency to the parties’ position and

contentions,’ in order to allow the agency to give the

issue meaningful consideration.”) (quoting Vermont

Yankee, 435 U.S. at 553).

Here, CGS only commented on the white stone pillars during the administrative process. Defendants relocated and repaired the pillars even though they

lacked distinction and integrity and were not eligible

for the National Register. FHWA 4496. Because plaintiffs did not otherwise make their other positions

known during the administrative process, they did not

“afford [defendants] the opportunity to rectify the violations that the plaintiffs alleged.’” Great Basin Mine

Watch v. Hankins, 456 F.3d 955, 965 (9th Cir. 2006).

91a

And plaintiffs’ comments in 2007 and 2008, made after

defendants issued the Revised EA and FONSI, “may

not form a basis for reversal of an agency decision.”

Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th

Cir. 1991) (citing Vermont Yankee, 435 U.S. at 553–

54).

Therefore, plaintiffs’ only plausible means of escaping the exhaustion requirement is to somehow excuse

their lack of participation in the administrative process. See Havasupai Tribe, 943 F.2d at 34 (“Absent exceptional circumstances, such belatedly raised issues

may not form a basis for reversal of an agency decision.”). For example, if defendants had owed plaintiffs

consultation duties under NHPA but failed to perform

them, defendants might be to blame for plaintiffs’ failure to timely raise their concerns. However, as discussed supra, Section VI.A, plaintiffs are not federally

recognized Indian tribes and defendants owed them no

consultation duties apart from allowing them to comment publicly, which defendants did. Plaintiffs therefore have no tenable excuse for their lack of participation in the administrative process. Plaintiffs’ claims

are waived.

Plaintiffs’ invocation of the independent knowledge

exception does not save them from this exhaustion requirement. Consistent with the Supreme Court’s application of Vermont Yankee, the Ninth Circuit “has

declined to adopt ‘a broad rule which would require

participation in agency proceedings as a condition

precedent to seeking judicial review of an agency decision.’” ‘Ilio’ulaokalani Coalition v. Rumsfeld, 464 F.3d

1083, 1092 (9th Cir. 2006) (citing Kunaknana v. Clark,

742 F.2d 1145, 1148 (9th Cir. 1984)). The Ninth Circuit “has drawn a distinction between situations in

92a

which NEPA plaintiffs submitted comments that did

not alert the agency to their concerns or failed to participate when the agency looked into their concerns

and situations in which plaintiffs allege procedural violations of NEPA.” Id. (quoting Kunaknana, 742 F.2d

at 1148). Because “the agency bears the primary responsibility to ensure that it complies with NEPA, . . .

an EA’s or an EIS’ flaws might be so obvious that there

is no need for a commentator to point them out specifically in order to preserve its ability to challenge a proposed action.” Dept. of Transp. v. Pub. Citizen, 541

U.S. 752, 765 (2004) (emphasis added).

The Ninth Circuit’s decision in ‘Ilio’ulaokalani Coalition is instructive. During a project transforming

the 2nd Brigade in Hawaii into a Stryker Brigade

Combat Team, the Army divided its NEPA compliance

into two tiers. See 464 F.3d at 1088–91. In the first

tier, the Army decided to transform the 2nd Brigade

in place without considering any alternative locations.

But the EIS had “no supporting analysis,” and the

“Army’s experts recognized this as a potential deficiency”: “The PEIS leaves us short on alternatives. The

only alternatives we have are no action versus action.”

Id. at 1090 (quoting record). This decision constrained

future decision- making in the second tier. “In response to public questions as to why alternatives outside of Hawaii were not considered,” the Army pointed

to its earlier unsubstantiated decision. Id. at 1091.

On appeal, the Ninth Circuit held that the plaintiffs did not waive “their opportunity to challenge the

range of alternatives considered in the PEIS” because

the “Army had independent knowledge of the very issue that concerns Plaintiffs in this case such that

‘there is no need for a commentator to point them out

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specifically in order to preserve its ability to challenge

a proposed action.’” Id. at 1092–93 (quoting Pub. Citizen, 541 U.S. at 765). The court found that “[t]he record in this case is replete with evidence that the Army

recognized the specific shortfall of the PEIS raised by

Plaintiffs here: the failure to support the determination to transform the 2nd Brigade in place.” Id. at

1092.

Here, by contrast, the record does not reflect that

defendants had independent knowledge of the very issues that concern plaintiffs in this case. Plaintiffs contend that their “legal claims all stem from the same

concern: that the project would disturb sensitive environmental and cultural resources just north of U.S. 26

in Dwyer,” and “[t]hus, if the Government had ‘independent knowledge’ of this concern, it had the responsibility to address it during the administrative process—whether Plaintiffs participated or not.” Pls.’ Reply 4, ECF #345. But this is about as general of a concern as one can imagine. Much more specificity is required. See Jewell, 840 F.3d at 571 (finding an argument to be waived when the plaintiff did not use a specific term in its comments on a draft EIS or make specific arguments about the issue, separately from more

general issues).

Plaintiffs seize on a paragraph from defendants’

motion for summary judgment where defendants argue there was “no need for a supplemental” NEPA

analysis when Logan and Jones told FHWA that “the

project could destroy American Indian cultural and religious sites” because this allegation “did not in fact

raise ‘new’ information.” Pls.’ Reply 1, 4, 25, ECF #345

(citing Defs.’ Mot. Summ. J. 21, ECF #340) (quotation

94a

marks omitted). Plaintiffs take this to mean “the Government was well aware of Plaintiffs’ concerns,” and

argue that the independent knowledge doctrine therefore captures all their claims. Id. at 4. But what defendants argue is simply another way of saying that

plaintiffs did not raise their specific concerns until

they filed suit (or even moved for summary judgment);

whether “the project could destroy American Indian

cultural and religious sites” is a general concern that

defendants had already addressed. If plaintiffs took issue with how defendants addressed this broad concern, they should have said so during the public comment period.

Plaintiffs also contend that comments Jones made

during the comment periods of the two prior highwaywidening projects regarding a gravesite in the Dwyer

area, old-growth trees, and the Dwyer area’s status as

a recreational area should have alerted defendants to

the concerns they raise here. Pls.’ Reply 5, ECF #345.

For instance, plaintiffs now contend that the rock

feature in the Dwyer area, which was previously alleged to be a grave site, is actually a sacred campsite

and altar. However, as defendants aptly note, there is

no evidence that they had any knowledge of this specific claim. Defs.’ Reply Mot. Summ, J. 8, ECF #346.

Instead, based on reports that it was a grave site, defendants conducted an investigation into that claim.

Pettigrew and two other archeologists excavated the

site, and Pettigrew reported that the site “has no

demonstrated archaeological significance and does not

in my judgment appear worthy of either protection or

mitigation.” FHWA 305. They found no evidence of human remains. In 1991, Yallup raised specific concerns

about burials in parts of the document and focus on ,

95a

but not in the Dwyer area or the north side of the highway. See FHWA 5567–90. Another archeologist told

Jones in March 1992 that the “rock stack” was clearly

not a historic resource. ACHP 219. O’Grady investigated the site again nearly twenty years later and

agreed with Pettigrew’s finding that the rock cluster

was not worthy of protection or mitigation. FHWA

2414, ACHP 57–62. Had defendants received information from plaintiffs that this was in fact a sacred

campsite and altar, they could have further investigated those specific claims, but they received no such

information. Moreover, the record reveals that

through 2007, defendants consulted with Grand

Ronde, Warm Springs, Siletz, and Yakama Nation and

confirmed the rock feature was not culturally or historically significant. In December 2007, Grand

Ronde’s Cultural Protection Coordinator told ODOT,

“I am not sure that I would call this rock feature cultural if I had found it[.] [I]t most likely is a pile of rocks

from ploughing.” FHWA 5088.

Plaintiffs also now challenge the project’s effects on

old-growth trees and the Dwyer area’s status as recreation area. Defendants in fact addressed these general

concerns. When there was public outcry over cutting

trees in the Dwyer area during the planning of the

Wildwood to Rhododendron project in 1986 and ‘87,

ODOT selected a modified alternative that eliminated

the turn lane and spared old growth. FHWA 441–44.

Later, during the planning of the Wildwood to Wemme

project, there was public outcry over the lack of safety

on the highway because people were dying in traffic

accidents—not over the loss of old-growth trees. In response, ODOT reassessed environmental, archeological, and historic resources in 2005 and 2006. FHWA

96a

2410–54, 4966–71. A botanical survey revealed a diverse community of lichens and vascular plants in the

Dwyer area and acknowledged 65 large trees would

need to be cut but found that the general character of

the area would not be changed. FHWA 4473. ODOT

considered seven different alternatives with varying

impacts on the Dwyer area, including impacts on the

nearby Wildwood Recreation Site. FHWA 4359–64.

ODOT even considered and rejected a “widen north

and realign” alternative that would have moved the

northern edge of the pavement six feet further north

and required cutting even more trees in the Dwyer

area than the selected “widen to the north” alternative. FHWA 4360. ODOT also prioritized preserving

the historic Barlow Road trace and reducing impact to

wildlife habitat, private property, utilities, and businesses just south of the highway. FHWA 4361–62. Defendants published this analysis and sought CGS’

feedback.

If plaintiffs took issue with this analysis or had additional concerns, they should have participated in the

administrative process. 17 Before the public-comment

17 Even when Jones and Logan began calling and faxing docu-

ments to defendants in early 2008, long after the close of the public comment period and issuance of the Revised EA and FONSI,

they sought to recognize “all heritage resources” along the highway, including outside the project area. FHWA 5474–83. Logan

insisted that over 40 sites, including the Dwyer area, should be

listed in the National Register. ACHP 142–43. When Slockish

and Jackson finally sent memoranda in May 2008, they wrote

that the entire forest is sacred, of traditional medicines and foods,

and of sacred burials. ACHP 123–41. Plaintiffs concerns about

sites and resources outside the Wildwood to Wemme project area

are simply irrelevant, and plaintiffs forfeited their opportunity to

97a

period closed, CGS only raised concern about the white

stone pillars, which defendants accommodated. See

‘Ilio’ulaokalani Coalition, 464 F.3d at 1092 (“plaintiffs

submitted comments that did not alert the agency to

their concerns”). Like with the white stone pillars, if

provided the opportunity, defendants could have rectified any alleged deficiencies or otherwise given them

meaningful consideration.

In sum, no one raised the specific, nuanced concerns or critiques of defendants’ analysis that plaintiffs raise now. “When the argument is one of degree,

rather than an outright failure to address, the plaintiff

must raise that argument during the comment period

or be precluded from litigating it at a later date.”

League of Wilderness Defenders–Blue Mountain Biodiversity Project v. Bosworth, 383 F. Supp. 2d 1285,

1296–97 (D. Or. 2005); see also Honolulutraffic.com v.

Fed. Transit Admin., CIV. 11-00307 AWT, 2012 WL

180, at *8 (D. Haw. May 17, 2012) (“It would be unreasonable to hold that Defendants’ attempts to address

the comment letters concerning the Merchant Street

District were ‘obviously’ flawed, when Plaintiffs made

no effort to point out those flaws themselves”); Moapa

Band of Paiutes v. U.S. Bureau of Land Mgt., 2:10-CV02021- KJD, 2011 WL 4738120, at *12 (D. Nev. Oct. 6,

2011) (“Plaintiffs did not raise the issue of the degree

to which the BLM addressed the no-action alternative

in the comments to the EA or in the scoping period,

despite ample opportunity to do so.”), aff’d sub nom.

Moapa Band of Paiutes v. Bureau of Land Mgt., 546 F.

allege deficiencies with defendants’ analysis of archeological, historical, and cultural resources in the project area because defendants conducted that analysis and plaintiffs did not timely identify

flaws in that analysis.

98a

App’x. 655 (9th Cir. 2013) (cited pursuant to Ninth Circuit Rule 36- 3). Because plaintiffs failed to raise these

specific concerns at the administrative level, their

claims are waived.

VIII. NAGPRA

By its nature, a NAGPRA claim based on inadvertent discovery of Native American cultural items is not

subject to administrative waiver. See 25 U.S.C. §

3002(d)(1); see also 43 C.F.R. §10.4(d)(1)(ii); Bonnichsen v. United States, 367 F.3d 864, 873 (9th Cir. 2004)

(“[NAGPRA] Section 3013 by its terms broadly confers

jurisdiction on the courts to hear ‘any action’ brought

by ‘any person alleging a violation.”) (quoting 25

U.S.C. § 3013)) (emphasis in Bonnichsen).

NAGRPA “culminates decades of struggle by Native American tribal governments and people to protect against grave desecration, to repatriate thousands

of dead relatives or ancestors, and to retrieve stolen or

improperly acquired religious and cultural property

back to Native owners.” Jack F. Trope Walter R., The

Native American Graves Protection and Repatriation

Act: Background and Legislative History, 24 ARIZ. ST.

L.J. 35, 36 (1992). The law has three substantive components. First, it imposes criminal liability on anyone

who “knowingly sells, purchases, uses for profit, or

transports for sale or profit, the human remains of a

Native American without the right of possession to

those remains.” 18 U.S.C. § 1170. Second, it provides

for the inventory, identification, and repatriation of

Native American human remains, associated and unassociated funerary objects, sacred objects, and objects

of cultural patrimony from federally funded museums

and agencies to lineal descendants or the Indian tribe

or Native Hawaiian organization with the strongest

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cultural affiliations. See generally 25 U.S.C. §§ 3001–

05; 43 C.F.R. §§ 10.1–.17. The museums and agencies

were given five years from November 16, 1990 (with

the possible extensions of time if compliance efforts

were made in good faith),18 to inventory and identify

human remains and cultural items in their possession

and control. 25 U.S.C. §§ 3003(a), (b)(1)(B), (c). Third,

NAGPRA provides protections for human remains, associated and unassociated funerary objects, sacred objects, and objects of cultural patrimony during intentional excavation or from inadvertent discovery after

November 16, 1990. 25 U.S.C. §§ 3002(a), (c)–(d); see

also 43 C.F.R. §§ 10.3–.4.

NAGPRA mandates a two-part analysis. Bonnichsen, 367 F.3d at 875. The first inquiry is whether the

items are Native American within the statute’s meaning. If the objects are not Native American, then

NAGPRA does not apply. If the objects are Native

American, then NAGPRA applies, triggering the second inquiry of determining which persons or tribes are

most closely affiliated with the remains. Id.

Plaintiffs argue that BLM violated NAGPRA when

it failed to notify and consult Indian tribes when excavating or removing the altar, and, that ODOT archeologist Philipek violated the inadvertent discovery provision when she visited the site in 2008 and discovered

the stone altar was scattered but did not follow the

requisite notification and cessation requirements. Pls.’

These efforts are ongoing, as tens of millions of human remains and funerary objects were stolen or improperly acquired

before the law was enacted. See U.S. Government Accountability

Office, Native American Graves Protection and Repatriation Act:

After almost 20 years, Key Federal Agencies Still Have Not Fully

Complied with the Act at 4–8 (July 2010) (GAO-10-768).

18

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Mot. Summ. J. 51–55, ECF #331. However, even if

BLM, as the primary management authority over the

land in the project area, was required to notify and

consult with Indian tribes associated with the rock feature and secure an APRA permit before proceeding, see

43 C.F.R. § 10.4(d), as already explained, plaintiffs are

not federally recognized Indian tribes and do not have

article III standing to challenge duties owed to Indian

tribes. Moreover, plaintiffs’ inadvertent discovery argument fails because any sacred objects were discovered before November 16, 1990.

During construction, persons who know, or have

reason to know, that they have discovered Native

American cultural items on “Federal or tribal lands after November 16, 1990, shall . . . cease [construction]

in the area of discovery, make a reasonable effort to

protect the items discovered before resuming such activity,” and notify the agency managing the land and

the appropriate Indian tribe. 25 U.S.C. § 3002(d)(1);

see also 43 C.F.R. §10.4(d)(1)(ii).

As an initial matter, defendants’ (and Philipek’s)

position that the objects were not Native American

cultural items was based on substantial evidence.

ODOT consulted with the official cultural resources

personnel of the four federally recognized Indian

tribes with cultural ties to the area. All agreed the

stones were not worthy of protection. Every archeologist to visit the site found the stones to be of no cultural or archeological significance. Grand Ronde provided a tribal monitor during construction to stop construction if human remains or cultural items were discovered. Defendants’ determination that the stones

and campsite in the Dwyer area were not Native

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American cultural items was based on this substantial

evidence.

Even assuming, however, the stones and campsite

were Native American cultural items, 19 defendants

did not inadvertently discover them after November

16, 1990, because they were discovered by Pettigrew

and his team in 1986 at the latest. See Geronimo v.

Obama, 725 F. Supp. 2d 182, 186 (D.D.C. 2010) (holding complaint failed to state a NAGPRA claim “because it alleges no discoveries after November 16,

1990, the only discoveries to which § 3002 applies,” as

the “only alleged discovery or wrongful removal described by the complaint occurred in or around 1918”).

Plaintiffs cite Yankton Sioux Tribe for the proposition that a later “re-observation” constitutes an inadvertent discovery. Pls.’ Mot. Summ. J. 52, ECF #331;

Pls.’ Reply 39–40, ECF #345. It certainly may be, but

that is not what happened here. In Yankton Sioux

Tribe, the U.S. Army Corps of Engineers disinterred,

removed, and reinterred hundreds of bodies from a

cemetery and adjacent Indian burial site dating back

to the 1800s because they would be covered by water

part of the year after the construction of a dam. Id. at

1049. The Corps varied the water level depending on

flood control, irrigation, power supply, and recreation

needs, and by 1966, it was clear some of the human

Slockish, Jackson,

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