Petition for Writ of Certiorari — Lockhart v. Kenops

————

UNITED STATES SUPREME COURT

October Term, 1991

GEMMA LOCKHART, Appellant

-VS-

DARRAL KENOPS, Forest Supervisor,

Black Hills National Forest, United States Forest Service

GARY CARGILL, Regional Forest

Supervisor, United States Forest Ser ce

F,. DALE ROBERTSON, Chief,

United States Forest Service

JOHN BLOCK, Secretary of Agriculture,

Defendants/A ppellees,

and

VERLA VAN ETTEN,

Intervenor.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES SUPREME COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

GEMMA LOCKHART

Rt. 8 Box 4600

Rapid City, SD 57702

605-342-0413

L/

7)

1.

QUFSTIONS

DOES DISPOSAL OF LAND BY THE UNITED STATES

FOREST SERVICE WITHOUT FAIR HEARING OR

OPPORTUNITY TO PRESENT EVIDENCE DENY DUE

PROCESS OF LAW?

SHOULD THE DISTRICT COURT HAVE ALLOWED

PLAINTIFF TO PRESENT EVIDENCE?

All parties to this proceeding are listed in the case caption.

il

TABLE OF CONTENTS

Page

EE PIII eiissicivencnisbaictaccninateninticdaipdidaonmntalenadieimandaaid iv

AIIIITIITT ccc ieteenebdchceinitamncbigipeibhacaiaiaeaiaiaioaoigtaleaaan ie vi

IIa ctlcicichnssssbeetiionrvsiiahideshianineisiebacieeeiiggionbenisandasgasaesnaaniaaaioasieasdemamibts Vii

ee III 5s cussicnictie Saibaieeceaiinddesielanne lelibstcabedndiaineniaabioiie’ viii

EE a si dicienshssccedlerenasiincssserssviniiccionsibninamaipasbeiaaiie ]

PR iisitncidacescnitcirsuctitsdnihicntelihip aaadalbbiihasaminenahnistadacanlccimndionstiannianbaaaede 7

A. Summary Judgment Was Not Appropriate ...................:.::0000 7

B. Issues Raised by Agency Head Remain Unresolved ............... 9

C. Endangered and Threatened Species .................0:cccccscceeeeeeeees 12

INN is criccisscowassniectvnsundesepleveinieeesincaonionmmonaicaed 15

is ND SIND oo evn carrenscccnnescconscsesninronsinoniiiennnbiee 17

F. Petitioner was wrongfully excluded from the Courts ............ 22

TABLE OF AUTHORITIES

Cases Page

Adickes y. S.H. Kress and Co,, 398 U.S. 144 at 157. ................ 7,8

Foundati E ic Trends v. Wein!

610 F.Supp. 829, 837-838 n.8 (D.D.C. 1985). ........ccccescesseeseeseees 14

Kleppe vy. Sierra Club, 427 U.S. 390,

410 n.21, 96 S.Ct. 2718,-2730 1.21 (1976). .0......ceeececeeeeeeeeeeeeeeees 14

I Non Indian C P ;

I AEE OO, EF CED DBMRe exveesenereveerccneesssooeserscesenees 21

Maryland—National Capital Par 1 Planni

ee RT ad | 14

463 U.S. 29, 43, 103 S.Ct. 2856, 2867 (1983). .............ceeeeeeeeeeeees 14

National Wildlife Fed’ Burford,

a cdabeneermneioonanibeavions 4

O1 1 Citi fora B Te .

y. United States, 793 F.2d 201, 204 (8th Cir. 1986). ..........0.000.... 14

Roberts v, Browning, 610 F.2d 528, 531 (8th Cir. 1979) ............. 9

Sierra Club v, Clark, 774 F.2d at 1410. 00... eeeeseseesee eeeeessesesenees 14

Statutes Page

I histo casiererecemeccresernenpeseshadaaiecbsbiansemenaeatanigni ita: 12, 13

ea 12, 13

I cs atisssixscdenccuioiaistieditacernaieadeeniaeesbtaahemntaccial 12, 13

BET SII cicscicuvcsts lsachcvesvanbchepariiciecuuetiaceeptatinioenaeaneionen 12, 13

IIE ated 10-r cc setbaceneetnceneanusammcacouaamnenesneciaetcein 17

ee 17

al ee ee ee 18

I ieitdrintitiidres cake een 17

eh anes RSet lis Ae Re rae AAS 20

NN a ee ee 7

8 Rea TON ae CE fe 3,17

LT RE RRMA re 17

i RE SOLE LAER TaN 17

SPR PIII THIN "cc. sssrs cn scnasncecooueaseannseasasdocanensuncheanennanel 2,4, 5

GROUNDS

Petitioner calls upon this Court with eamest desire, and by the

powers of the Great Spirit, to invoke the jurisdiction of this Court

to review this matter on the grounds that you can. Opinions sought

to be reviewed in Lockhart v, Kenops et.al. include the District

Court order of September 18, 1989, granting summary judgment to

the government, the March 7, 1991, United States aes of

Appeals order upholding the lower court yet remaining silent as to

improper summary judgment, and the April 26, 1991, denial of my

timely request for rehearing.

Jurisdiction to review this case by Writ of Certiorani is

conferred upon this Court by 28 U.S.C. Section 1254 (1). This

petition for Writ of Certiorani is timely, filed in accordance with

Rule 13 of the Supreme Court Rules 13.1 and 13.4.

vi

LAWS

Constitutional provisions, statutes, ordinances, and regulations

violated in this case include NEPA, the Endangered Species Act,

16 U.S.C. 1531-1544, the Bald Eagle Protection Act, 16 U.S.C.

668, 106 of the National Historic Preservation Act, 16 U.S.C. 470f,

the American Indian Religious Freedom Act (AIRFA), 42 U.S.C.

1996, the Federal Land Exchange Acts, 16 U.S.C. 485, 486, 516,

§21d, 5551; 42 U.S.C. 1715, 1716; 7 U.S.C. 1011, and the First

and Fifth ammendments to the federal Constitution.

Also, Rule 56(c) of the Federal Rules of Civil Procedure make

clear that summary judgment is not appropriate unless the

pleadings, stipulations, affidavits, and admissions in the case

“show that there exists no genuine issue as to any material in fact.”

Vil

OPENING REFERENCE

Gemma Lockhart, representing herself Pro Se, states that she is

grateful to the Honorable Richard H. Battey, United States District

Judge for the District of South Dakota, The Honorable Circuit

Judges Wollman, Heaney, and Magill, and all the judges

representing the United States Court of Appeals for the Eighth

Circuit, for the time and consideration they have given to this

matter.

Further, Gemma Lockhart sends greetings from the Black Hills

of South Dakota to honorable members of the United States

Supreme Court and their law clerks, and requests you have

patience and understanding for her, as she is a humble person and

is unable to be represented by an attomey of Law. I appealed to

the Eighth Circuit the order of the District Court improperly

granting Summary Judgment to the government in an effort to

receive fair hearing before disposal of important federal land. In

regard to improper granting of Summary Judgment, the Eighth

Circuit remains silent. This silence serves a great hlow of injustice

to Lakota citizens on Dakota land who have been most respectful

in disagreeing with Forest Service conclusions regarding

Vili

i.

knowledge of the natural world and significance of the parcel in .

question. Silence of the Eighth Circuit and subsequent denial of

rehearing has brought about a treacherous point in time only you

can now remedy. I pray you grant this petition for a Wnit of

Certiorari.

ix

STATEMENT OF THE CASE

The say the male peregrine falcon’s love of his cliff is the

strongest bond in his life. Even greater than the attachment to his

mate. In the momings in Dark Canyon I hear falcons cry. As I

write I realize what the sight of those falcons do for my spirit. The

swift hawks are the work of creation. By understanding their

beauty and function I appreciate more and more my own creator.

The Winter of 1985 I heard developers were planning to build

an elite housing development on the high cliff and falcon home.

Since before the late 1800s, when this parcel became Forest

Service land, it was a place of Lakota prayer. It remains a place of

Lakota prayer today. And this land is a favorite Winter spot of the

Bald Eagle. He likes to fish open places in the creek below. The

Forest Service planned to dispose of the 100-acre parcel by way of

a land exchange.

On Valentines Day, 1985, my father, my sister, and myself sat

down to inform the Agency in writing of the environmental and

cultural harm they would cause if they continued with plans to

dispose of this place. We rightfully asserted disposal of the land

and development would adversely affect the air, water, and soil,

l

would harm life, including endangered and threatened species, and

would interfere with Indian religious ceremonies. I cannot believe

and do not want to believe the actions of the Agency that followed.

The record will show a continuous string of blunders and

remands of Agency decisions from the Chief of the Forest Service

to the Regional Forester regarding environmental and cultural

matters which raise issues of material fact, evidence as to which

have yet to be received and considered on the merits by any Court.

On June 4, 1951, the Bureau of Land Management,

Department of the Interior, pursuant to statutory authority,

authorized Public land Order 725 which classified the one hundred

(100) acre parcel as reserved for public use and withdrew it from

the laws of the National Forest so as to give it reserve status. This

made it illegal for the Government to dispose of the property by

land transfer. |

September 22, 1982, while PLO 725 was in full effect Verla

Van Etten requested to acquire the high cliff area for purposes of

building an upscale housing development, through the land

exchange process. At this time PLO 725 made it illegal to do so.

The Forest Service and the Van Etten’s proceeded in an effort to

2

accomplish the proposed Van Etten land exchange.

As the Eighth Circuit in Lockhart vy, Kenops, 927 F.2d 1028 at

1031 (1991), the first Environmental Assessment prepared by the

Agency approved the exchange in “concept only”, with final

approval expressly conditioned on completion of studies of cultural

and mineral resources, with a finding that they would not be

significantly affected. Note that early in the administrative process

of this illegal land exchange, the Agency itself expressed a need

for study of cultural resources of this parcel of land.

Appraisal inequities required Van Etten’s to offer additional

land for the trade. On January 3, 1985, the Regional Forester

approved a revised EA, again concluding the exchange would have

no significant impact on the environment, and no EIS need be

done. (App. Vol. I, tab 2) At this time, Dr. Donald Van Etten

made public his plans to build luxury homes on the canyon ridge.

On or about February 14, 1985, myself and others appealed the

decision to the Forest Service pursuant to 36 C.F.R. and 211.18.

We rightfully stated disposal of the land for development would

adversely affect the air, water, and soil, would harm wild life,

including endangered and threatened species, and would interfere

3

with Indian religious ceremonies.

Thereafter, on June 7, 1985, E. Max Peterson, the chief of

Forest Service remanded the matter to the Regional Forester

expressing various concems including lack of discussion of

environmental impact and cultural resources discussion. A

Supplemental Environmental Analysis was issued on July 9, 1985.

This was followed by appeals (August 21 and 22, 1985) and a

further remand by the chief (September 2, 1985). The Regional

Forester was directed to respond to specific inquiries. A brief (2 1/

2 pages) Environmental Assessment Update was thereafter issued.

On May 7, 1987, in absence of the ordered response, Dale

Robertson, the new Chief of the Forest Service, approved the

exchange. On June 1, 1987, the Secretary of Agriculture declined

to review that determination.

However, since PLO 725 remained in place and protected the

high cliff area for public use, the exchange could not properly be

approved. The decision to approve the land transfer of the parcel

was without legal authority.

The injunction issued in National Wildlife Fed’n y, Burford,

835 F.2d 305 (D.D. Cir. 1987), kept the Government from lifting _

4

PLO 725. Also, I requested that the Bureau of Land Management

give me an opportunity to have public input before they would act

to change classification of the land in question. This request was

sent by certified, return receipt requested United States mail. This

request was denied.

On August 4, 1987, myself and others filed this action

asserting violations of Constitutional provisions, statutes,

ordinances - regulations cited above. The action sought

declaratory and injunctive relief to prevent the Forest Service from

proceeding with the exchange unless and until the cited statutes

were complied with. Both parties stipulated to a stay because of

PLO 725 and the injunction in Burford.

November 4, 1988, the D.C. Circuit vacated the Burford

injunction. Six months later with notice only by way of

microscopic printing in the —_— Register, PLO 725 was

revoked.

The revocation became effective May 25, 1989.

July 5, 1989, the District Court granted a temporary restraining

order (TRO) prohibiting the exchange, but requested fifty thousand

($50,000.00) dollars bond by Plaintiffs. Plaintiffs were willing to

5

post bond, but could not immediately, because of joint ownership

of land to be used as collateral, and logistics of gaining proper

signatures from across the United States. When bond was not

immediately posted, the Court lifted the TRO and allowed the

exchange subject to the requirement that Van Etten not cause “any

physical change or destruction of the environment or property”

until the case was over.

July 7, 1989, the exchange occurred. Title of the high cliff

area was issued to Van Etten.

September 18, 1989, the District Court granted Summary

Judgment tothe Government.

September 10, 1990, I filed an appeal to the Eighth Circuit

Court of Appeals which upheld the District Court in it decision

filed March 7, 1991. I made a timely request for rehearing. The

Petition as to both Rehearing En Banc and Rehearing by the Panel

was denied on April 26, 1991.

ARGUMENT

A. SUMMARY JUDGMENT WAS NOT APPROPRIATE

Standards Of Summary Judgment

Material facts in this case differ greatly depending on whether

you listen to the Government Agency or the voices of individuals

with unique knowledge of the land based upon daily observation

for five generations of time.

There are many disputed issues of fact. Thus, it was improper

for the District Court to grant Summary Judgment.

The Eighth Circuit within its opinion does not discuss

application of standards of Summary Judgment and seems to

address the question of whether there is support for the Agency

action without considering first whether there existed genuine

issues of material fact and, if so, whether the District Court

provided Plaintiff an opportunity to present evidence upon which

the Court might make finding of fact.

The District Court below cited Adickes y, S.H. Kress and Co.,

398 U.S. 144 at 157, as authority for the applicable standard in

making its determination to grant Summary Judgment under Rule

56(c) of the Fed.R.Civ.P. to the Defendants. In Adickes, supra,

rs

this Court made clear that the moving party had the burden to show

the absence of a genuine issue of material fact. Further, this Court

in Adickes noted that a District Court is

“required to view the facts in the light most favorable to

the party opposing the motion and to give that party the

benefit of all reasonable inferences to be drawn from the

underlying facts disclosed in the pleadings and affidavits.”

Ibid, at 158-159.

In the instant case, the Defendants/ Appellees were not

required to explain the several mysteries surrounding their failure

to find facts regarding environmental impacts. Rather, the District

Court consistently placed the burden on Plaintiffs/Appellants, the

non-moving Party, to bring such facts forward, and when

Plaintiffs/Appellants complied in filling in evidentiary gaps, the

substantial evidence presented was considered by the Court as

marginal. But if the facts were viewed in the light most favorable

to Plaintiffs/Appellants, they plainly show a likelihood that

Defendants/Appellees acted in an arbitrary and capricious manner

in reaching their findings, or acted in an unreasonable manner in ~

deciding not to prepare an EIS. The controversy is genuine and

8

substantial. See, Roberts vy. Browning, 610 F.2d 528, 531 (8th Cir.

1979).

The District Court cites Roberts as authority for its employ-

ment of Summary Judgment as a mechanism of judicial efficiency.

But Roberts also wams that “summary judgment is a harsh remedy

and should be granted sparingly.” Id, 610 F.2d at 531.

In its analysis of this case, the Appellate Court gets carried

away with separate disciplines of law and overlooks the

relationship they have to each other and to the Court. I wish when

the Supreme Court considers this case, it would think more broadly

than a single law allows. The nature of this case requires you to be

a universalist, to consider the facts and circumstances of this case

over time, and through time.

B. ISSUES RAISED BY THE AGENCY HEAD

REMAIN UNRESOLVED

The Chief of Forest Service, R. Max Peterson was not satisfied

with the Environmental Assessment performed as to this project

and twice remanded for greater analysis. (App. Vol IJA, tab 12 &

App. Vol. III, Doc. 39) In his Decision and Remand of September

2, 1986 he ordered the Regional Forester “to specifically address

the direct effects of Van Etten’s proposal on the soil, water, and air

quality on and in the vicinity of the parcel.” (App. Vol. III, Doc.

39) (emphasis added). The Regional Forester was further ordered

to “either update the EA or commence to do an EIS.” [bid, He did

neither.

November 4, 1986, the Regional Forester issued another

addition to the EA. This one was called an Environmental

Assessment Update (EAU) (App. Vol. III, Tab 44) purportedly

addressing concerns of Chief Peterson, but, as the Appellate Court

chooses to describe it, “albeit not in great detail.” Lockhart at

1031.

Former Chief Max Peterson outlined a series of questions that

must be answered before approval of the exchange could be

reconsidered. Only some of these questions were addressed in the

EAU approved by the new Chief who replaced Peterson. The

issues unaddressed and unanswered remained at the time of

approval.

The Chief, in his September 2, 1986, letter requested that the

Regional Forester address the direct environmental impacts on soil,

water, and air quality studies which were never performed in

10

response to his order. The Chief also directed that the questions of

the indirect effects on aesthetics, highway traffic and forest fires be

addressed. Studies in response to this request were never done.

This 2-1/2 page Environmental Update (App. Vol. III, Tab 44)

submitted by the Regional Forester contained brief conclusory

paragraphs on each subject, demonstrating that no new research

had been accomplished.

Rather, the individual signing the “Environmental Assessment

Update” for the Regional Forester states that his primary source

was a report entitled “Engineering Geology of Annamon Ridge”

(App. Vol. III, Exhibit 1). This report, written by a biologist and

an engineer, does 10t even purport to address each of the areas of

concem identified by Chief Peterson.’ Significantly, whatever

contribution the document makes is not new. The report was

issued prior to the directive of Chief Peterson.

Here, even discounting all of Plaintiff's evidence, issues of

material fact were shown to exist based upon the discrepancies and

omissions cited by the Chief of Forest Service and not responded

1. For example, the Eighth Circuit notes that “according to the study there seems

to be no safe way to disperse of sewage for four of the lots (Lockhart at 1033).

1]

to within the record. This alone should have precluded Summary

Judgment as genuine issues of material fact as defined by the

Agency’s top decision maker himself remained.

C. ENDANGERED AND THREATENED SPECIES

The Endangered or Threatened Wildlife Biological Evaluation

of the proposed Verla Van Etten Land Exchange Supplemental

Report dated January 13, 1986, (App. Vol. IIA, Doc. 18) shows

three confirmed sightings of Peregrine Falcons in the Black Hills

National Forest.

1. June 18, 1948, One occupied nest, Pennington County, Dark

Canyon, West of Rapid City; observed by Dilger.

2. July 6, 1956, Pair, Pennington County, Dark Canyon, nest

occupied; observed by Whitney Eastman.

3. August 13, 1960, One nest, Pennington County, Dark

Canyon, nest of unfledged juvenile banded by N.R.

Whitney, found by James Lockhart; observed by Whitney.

Because of this, Forest Supervisor James Mathers wrote a

letter to the Regional Forester on September 7, 1978. (App. Vol.

IIA, Doc. 18) (See also Appendix 6.)

ooo

This document determines that Dark Canyon is an essential

habitat for the Peregrine Falcon in the Black Hills National Forest.

Mathers points out Dark Canyon cliffs offer a dominating view of

the canyon. There are pot holes and ledges present to provide

necessary nests for Peregrine Falcons. There is abundant prey, and

Dark Canyon is the last historic nesting site of Peregrine Falcons in

the Black Hills.

This document is especially valuable for the Court because it

comes before Verla Van Etten’s request to acquire the Dark

Canyon land. It was prepared without bias.

Other en and affidavits of recent sightings in the record

contradict Forest Service conclusions of the absence of falcons and

show that they still exist and choose to nest in cliffs at the site in

question.”

A serious dispute therefore exists as to material facts exists as

to the sufficiency of the studies regarding the potential impact of

2. See, Affidavit of Sandra Reub, August 5, 1987, (including attached

February 7, 1986, letter in response to Schenck’s January 13, 1986,

“Supplemental Report) 8/App. Vol. V. Doc. 32: Affidavit of Gemma Lockhart,

August 22, 1987 (including attached August 22, 1985 Statement of Reasons, p. 8,

and march 6, 1986 Reply to Kesponsive Statement, p. 112-13) App. Vol. V., Doc.

4); Affidavit of James W. Lockhart, August 5, 1986 (including attached Ictter of

March 3, 1986) (App. Vol. V., Doc. 6).

13

the proposed project on endangered species, upon which the

finding of “no significant impact” was made.’ Endangered species

do exist and inhabit the area the Forest service seeks to dispose of.

All reports relied upon by the Agency concluded there would be no

impact on endangered species, and put forth bogus conclusions.

Falcons clearly do exist in this last known habitat in the Black

Hills. Statements of citizens making sightings were ignored.

Your Honors, please look carefully at the record in this case.

3. In reviewing an Agency decision regarding the development of land, a

District Court “must determine whether the Agency has provided convincing

reasons why potential impacts are truly insignificant.” Foundation on Economic

Trends v, Weinberger, 610 F.Supp. 829, 837-838 n.8 (D.D.C. 1985) (quoting,

Marviend-National Capital Park and Pleanine C ‘nv. United $ Postal

Service, 487 F.2d 1029, 1040 (D.C. Cir. 1973)]. The record must show that the

Agency satisfied NEPA requirements of being “fully informed about” and making

“well-reasoned judgments regarding the environmental effects of their proposed

actions.” Olmstead Citizens For A Better Community v, United States, 793 F.2d

201, 204 (8th Cir. 1986). At a bare minimum, the record must indicate that the

Agency took a “hard look” at the environmental consequences of the proposed

action. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96 S.Ct 2718, 2730 n.21

(1976).

The record in this case does not support a finding that the Forest Service

reasonably fulfilled its obligations under NEPA and other applicable statutes. The

record is completely devoid of any indication that the Forest Service conducted a

proper “context” or “intensity” analysis as to the potential impact, long- or short-

term, of the contemplated use of the public land on Plaintiff's adjacent land and

Rapid Creek. 42 C.F.R. 1508.27.

As the Ninth Circuit expressed in Sierra Club v, Clark, 774; Agency action

must be considered “arbitrary and capricious” if the Agency “entirely failed to

consider an important aspect of the problem” or “offered an explanation for its

decision that runs counter to the evidence before the Agency.” [bid., 774 F.2d at

1410 (citing, Motor Vehicle Mfrs. Ass'n. v. State Farm Mutual, 463 U.S. 29, 43,

103 S.Ct. 2856, 2867 (1983)].

14

~~

Material facts differ greatly depending on whether you listen to the

Government Agency or the voices of individuals with unique

knowledge of the significant land.

D. CULTURAL RESOURCES

Forest Service concluded that the proponent’s planned housing

development will have no effect on cultural (and presumably

historic) resources, since no sites eligible for inclusion on the

National Register of Historic Places were found by Overland

Associates, Inc., in their 1983 survey. Admin. Rec. (App. Vol.

IIA, Doc. 1, Exhib. 7). Since such sites clearly exist, the Survey

upon which the Forest Service relied for its finding of “no

significant impact” was factually flawed. The District Court’s |

deference to this study, without considering that other reliable

evidence raised a substantial number of unanswered questions, was

misplaced.

Overland Associates states at Sec. 5 of their report that the

Archeological Research Center at Ft. Meade, South Dakota, and

the Black Hills National Forest Cultural Auas revealed that the 100

acre tract of public land in issue had peyer been surveyed.

The Overland Associates “field reconnaissance” was

insubstantial. For example, a mine quarry which dates from 1909

is Clearly visible on the 100 acres, on the cliff wall of the southem

part of the public land. This is established by the Supplemental

Affidavit of James Lockhart, together with photographs and a 1945

local newspaper article attached thereto. (App. Vol. 4 Doc. 7). It

is hard to understand how anyone who looked could have missed

this historic quarry, from which much of early Rapid City was

constructed.‘ *

Nevertheless, the District Court viewed the Affidavit and

attachments only as “some marginal evidence that the findings of

the report were inaccurate” (Lockhart v. Kenops, slip opinion, Civ.

87-5076, p. 13, D.S.D. Sept. 1989) and the Eighth Circuit ignored

this evidence altogether.

Fully one year or the exchange occurred, the National

Advisory Council on Historic Preservation reviewed the Forest

Service’s determination that this exchange would have “no effect”

on historic properties; This review was conducted pursuant to 36

4. According to the Overland Study, such sites would be “high” on the

eligibility potenual for inclusion in the National Registry of Historic Places.

5. See, 5/16/86 Letter form Dr. King (App. Vol. V, Doc. 17).

16

em

CFR & 800.6 (e)(2). The Forest Service was advised to carry out

additional identification efforts recommended in the Council's

analysis. Specifically, the Forest Service was advised to comply as

needed with 36 CFR 800.4 (c) et. seq. (Letter and analysis

attached for your review as Appendix 7).

E. INDIAN RELIGIOUS CONCERNS

The First Amendment of the Constitution was not written for

Indians.

“The Constitution of the United States did not recognize

Native Americans as full participants in the government

that replaced all the colonies in their struggle for

independence. The Declaration of Independence was not

made to include the American Indians. Remarkable as the

Founding Fathers were, they were not broad enough to

gather the whole of the human family into the provisions

of this document...However, as time has passed, provisions

were made to include all people regardless of their culture.

Amernica is for ali people.”” Zvem, Ted, Address,

University of Wisconsin, Spring 1990.

17

This is important to keep in mind. It is especially important to

understand in light of the American Indian Religious Freedom Act

42 U.S.C. §1978. Thirteen years ago, Congress understood that if

Native Americans were to have the same freedom of religion

promised to and written for the rest of U.S. citizens in the First

Amendment, special factors must be taken into consideration.

Faimess required it. Cultural differences mandated it.

To my knowledge, there is not one member of this Court who

is deeply involved with American Indian people. In fact, you are a

group of people feared by most Indian scholars in the Nations for

what you have done, and what Indian people anticipate you will do

to wipe out what few protections remain for the indigenous people

who gave almost all they had that America may be a great nation.

The Supreme Court must hold a deep obligation to Justice to

consider the needs of these people. You must go out of your way

to understand and consider the needs of the American Indian.

For instance, let me speak briefly about what I believe. The

matter of religion is a matter of spirit When I was a young girl,

Ben Black Elk spoke to me. Not the old man, Black Elk, who

helped with the book Black Elk speaks, but his son, Ben. The one

18

—

who used to sit at Mount Rushmore and speak to visitors who

came to the Shrine to Democracy. Ben Black Elk said:

“Always remember what I am going to say. Never forget.

The Spirit World will speak to you if you know how to

listen in the right way. This means you must listen to the

plants. You must listen to the animals, and you must listen

to the bugs. Always listen to your elders. And always

listen to what the children are saying. If you do these

things, everything you need to know is in yourself.”

I share this with you so that you may understand, that to the

Lakota mind, the natural world is the way the spirit or religious

world communicates itself. Whether you believe it or not does not

matter. That you understand, I believe, is imperative. You are the

ones who have been entrusted with the judicial responsibility to

guaranice my right to Indian religion.

Additionally, if one listens to what the old people say, one

understands the significance or meaning of certain animals in

nature connected to religion or belief. The old people believe the

presence of an animal is not without the presence of the spirit it

presides over. Two examples I am free to speak of are the eagle

19

and the hawk. They say the spirit of the hawk presides over

swiftness and endurance. The old people say the spirit of the eagle

presides over hunting, battle, and counsel.

The Forest Service pretended they spoke to our elders

regarding the subject lands. They did not. The Eighth Circuit at

Footnote 7 at 1036 notes that the Forest Service “summary of a

conference with Indian spiritual leaders states that the Van Etten

exchange was discussed. Whereas, the transcript of the conference

shows that it was not.” While the Eighth Circuit finds this to be

“legally irrelevant,” this agency misrepresentation calls into

question the basis, integrity, and accuracy of its findings, thus

raising factual issues that the Court should have resolved only after

an evidentiary hearing.

An understanding of Lakota belief offers the Court a more

inumate view of the importance and relevance of culture in regard

to the violations of National Environmental Policy Act 42 U.S.C.

§4321-4370, the First Amendment of the U.S. Constitution, and

American Indian Religious Freedom Act. Please be willing to

consider my religious belief and my environmental concerns, their

relationship to each other, and their relationship to you.

20

4

You must recognize the rights of Indian people to pray and to

have a philosophy different from your own. It is hard to imagine a

people more contrary or opposite to the European ancestors who

have settled here. Indians are diverse in their way of leaming, in

philosophy, and knowledge of life. We are not a thing of the past.

We are a growing population and request that you recognize our

rights to these things.

As you well know, I am not an attorney, but Lyng vy,

Northwest Indian Cemetery Protective Association 485 U.S. 439

(1988) S.Ct. does not apply to this case. This case is not about

government use of land or govemment management of land. This

Case is about government disposal of land where Indian

ceremonies have long taken place and continue today. This case

is about the wintering place of the great Bald Eagle, and it is about

the long standing and well documented home of the magnificent

and endangered Peregrine Falcon. At the heart of it all lies

improper summary judgment and the integrity of the legal process

which you safeguard.

21

F. PETITIONER WAS WRONGFULLY

EXCLUDED FROM THE COURTS

It would seem the job of the District Court would be to hear

evidence and testimony to substantiate citizen statements when

they differ so greatly from government findings and conclusions.

The Eight Circuit states that “(w)hile the Forest Service

conclusion may not be undisputed, it is certainly not unsupported

by the evidence.” (Lockhart at 1034) Here the Circuit seems to

forget that the District Court made its determination upon

summary judgment. If evidence exists to support the challenge to

the Administrative action, Plaintiff should have the opportunity to

establish through an evidentiary hearing that the action by the

Agency was arbitrary and capricious.

The Eighth Circuit Court of Appeals reviewed this matter as if

it had been determined in District Court based upon receipt of

evidence at tnal. There was no trial.

The Eighth Circuit erred in affirming dismissal as Plaintiff

demonstrated a prima facia case. The threshold for showing prima

facia case is far below that which is necessary to prevail upon

hearing. The Plaintiffs submitted sufficient evidence to require

this case to go to trial. A prayer comes to you from the Black Hills

22

of South Dakota. Please grant this citizen's petition for a Writ of

Certiorari.

July 24, 1991

Respectfully submitted

tel ek ben a

Gemma Lockhan

Rt. 8 Box 4600

Rapid City, SD 57702

605-342-0413

23

~

i)

5

APPENDIX

Sept. 18, 1989 Judgement of District

Court

Sept. 18, 1989 Memorandum Ovinion of

District Court.

March 7, 1991 Opinion of Eighth Circuit

Court of Appeals

April 26, 1991 Denial of Rehearing by

Eighth Circuit Court of Appeals

Feb. 14, 1985 Statement of Appeal

Reasons to Forest Service from Gemma

Lockhart 7

Sept. 7, 1978 letter of James Mathers

identifying Dark Canyon as Essential

Habitat for the Peregrine Falcon.

July 26, 1988 Letter of Tom King,

President, National Advisory Council

on Historic Preservation, analysis and

advice to Forest Service to comply with

law.

a

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

JAMES LOCKHART, CIV. 87-5076

GEMMA LOCKHART,

SANDRA REUB,

AMERICAN INDIANS

AGAINST DESECRATION

Plaintiffs,

)

)

)

)

)

)

)

)

VS. )

) JUDGMENT

DARREL KENOPS, Forest )

Supervisor, Black Hills )

National Forest, United )

States Forest Service; )

GARY CARGILL, Regional)

Forest Supervisor, United _)

States Forest Service; )

F. DALE ROBERTSON, _)

Chief, United States Forest )

Service; JOHN BLOCK, )

Secretary of Agriculture, )

)

)

)

)

)

)

)

)

Defendants.

and

VERLA J. VAN ETTEN,

Intervenor.

Pursuant to the memorandum opinion issued

September 18, 1989, it is hereby

ORDERED that judgment shall be entered in favor

of defendants and intervenor and against plaintiffs.

IT IS FURTHER ORDERED that plaintiffs’ action

is dismissed without prejudice.

IT IS FURTHER ORDERED that plaintiffs shall

pay costs in the amount of $ , such costs to be

hereinafter taxed and inserted by the Clerk.

Dated this 18th day of September, 1989.

BY THE COURT:

RICHARD H. BATTEY

UNITED STATES DISTRICT JUDGE

ATTEST:

WILLIAM F. CLAYTON, CLERK

By

Deputy Clerk

(SEAL)

bho

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

JAMES LOCKHART, CIV. 87-5076

GEMMA LOCKHART,

SANDRA REUB,

AMERICAN INDIANS

AGAINST DESECRATION

Plaintiffs,

VS.

MEMORANDUM

DARREL KENOPS, Forest OPINION

)

)

)

)

)

)

)

)

)

)

)

Supervisor, Black Hills )

National Forest, United )

States Forest Service; )

GARY CARGILL, Regional)

Forest Supervisor, United _ )

States Forest Service; )

F. DALE ROBERTSON, _ )

Chief, United States Forest )

Service; JOHN BLOCK, )

Secretary of Agriculture, )

)

)

)

)

)

)

)

)

Defendants.

and

VERLA J. VAN ETTEN,

Intervenor.

ii

NATURE AND PROCEDURAL HISTORY

In 1985 plaintiffs began an attempt to block a pro-

posed 100-acre land exchange between the United States

defendants and Verla J. Van Etten, intervenor. The admin-

istrative action resulted in a four-volume record and a deci-

sion that the proposed land exchange be completed. Plain-

tiffs filed this action August 4, 1987. The action was stayed

on July 1, 1988, when the parties entered into a stipulation

which acknowledged that Public Land Order (PLO) 725

withdrew the lands from disposition and that an injunction

issued by the D.C. Circuit Court of Appeals in Nat’l Wildlife

Fed’n v. Buford, 835 F.2d 305 (D.C. Cir. 1987) enjoined the

government from revoking the withdrawal. On November 4,

1988, that court vacated its injunction in Buford and on May

29, 1989, PLO 725, as it affects the land which is the subject

of this lawsuit, was revoked. On June 15, 1989, defendants

announced their intent to again transfer title to such proper-

ty and plaintiffs renewed their suit. Fifteen days later one of

the plaintiffs, with others not party to the action, submitted

a special use permit application to permit the placing of a

small log structure on the land. Plaintiffs then sought, and

on July 5, 1989 received, a temporary restraining order

prohibiting the land exchange contingent upon the plaintiffs’

posting a $50,000 bond. When plaintiffs failed to post the

bond this Court lifted the TRO on July 10, 1989, and per-

mitted the exchange, but directed that the intervenor "re-

frain from causing any physical change or destruction of the

environment or property subject to this lawsuit.” Such

restraint wa fashioned by the Court upon a determination

made that the intervenor would be able to proceed with

development plans without the immediate necessity of harm-

ing the environment. A patent was issued to the intervenor

on July 7, 1989, and delivered to the intervenor after the

order by this Court allowing the exchange. On file are cross

motions for summary judgment.

-)

FACTS

The property at issue in this suit is 100 acres of what

was previously Forest Service land in the Black Hills of

South Dakota commonly known as the Dark Canyon Over-

look. This land was exchanged for almost 240 acres of land

also in the Black Hills which had been owned by intervenor

Verla Van Etten. Intervenor has made known her plans to

develop and sell approximately twelve to sixteen exclusive

home sites on the Dark Canyon Overlook property. Other

facts which go to the decision by the Forest Service whether

to exchange the land are found in the administrative record

and in the affidavits submitted by the parties. These facts

go to the heart of the case and are determinative of whether

the agency action was proper. They will be looked at in the

discussion.

STANDARD FOR SUMMARY JUDGMENT

Rule 56(c), Federal Rules of Civil Procedure, pro-

vides that summary judgment shall be rendered if the

"pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material tact and

that the moving party is entitled to judgment as a matter of

law.” In ruling on a motion for summary judgment, it is the

Court’s obligation to view the facts in the light most favor-

able to the adverse party and to allow the adverse party the

benefit of all reasonable inferences to be drawn from the

evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,

90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970); Inland Oil and

Transport Co. v. United States, 600 F.2d 725, 727-28 (8th

Cir.), cert. denied, 444 U.S. 991, 100 S. Ct. 522, 62 L. Ed. 2d

420 (1979).

If there is no genuine issue about any material fact,

summary judgment is proper because it avoids needless and

costly litigation and promotes judicial efficiency. Roberts v.

Brownii.2, 610 F.2d 528, 531 (8th Cir. 1979); United States

v. Porter, 581 F.2d 698, 703 (&th Cir. 1978). The summary

judgment procedure is not a “disfavored procedural! short

cut.” Rather, it is "an integral part of the Federal Rules as a

whole." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct.

2548, 2555, 91 L. Ed. 2d 265 (1986). Summary judgment is

appropriate against a party who fails to make a showing

sufficient to establish that there is a genuine issue for trial

about an element essential to that party’s case, and on which

dun peny will bear the burden of proof at trial. Id. 106 S.

Ct. 2553. See also Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986); Jordan

v. Hanks, 683 F. Supp. 1298, 1299 (W.D. Mo. 1988).

DISCUSSION

1. Plaintiffs’ Motion for Summary Judgment.

Plaintiffs’ request for summary judgment is denied.

Plaintiffs’ argument rests on the assumption that the Dark

Canyon Overlook property was withdrawn by PLO 725 and

that this order was never revoked. In fact, PLO 725 insofar

as it affects the 100 acres which is the subject of the suit, has

been revoked. See 43 C.F.R. PLO 6728, cited in 54 Fed.

Reg. 78. Also, the special use permit application submitted

by plaintiff Gemma Lockhart can only be considered after

resolution of the land exchange issue which was pending

long before such application was made. The special use

permit application applies to the 100-acre tract, but only if it

should remain Forest Service land. The Court holds that it

does not so remain; accordingly, the Court need not address

the issues raised involving the special use permit application.

2. Defendants’ Motion for Summary Judgment.

Defendants’ argument that the issuance of the patent

solves any defects is without merit. It simply does not make

any sense whatsoever to say that the very action by which

this Court allowed the patent to be issued while the case was

pending gives the defendants the means to have the case

dismissed. The government correctly states in its reply that

under the Administrative Procedure Act (APA) a reviewing

court can preserve status or rights pending conclusion of the

review proceedings. 5 U.S.C. § 705. This Court stands in

the position of a reviewing court and will choose to preserve

the rights of the plaintiffs until the case is disposed. See

Nat’l Forest Preservation Group v. Butz, 498 F.2d 1314 (8th

Cir. 1974) (en banc). Consequently, this Court must look to ~

the facts and record produced to determine if the adminis-

trative decision was or is not reasonable as a matter of law.

The scope of judicial review has been set by the

Supreme Court in Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402, 91 S. Ct. 814 (1971). If the agency

acted within the scope of its statutory authority it must be

determined whether the agency choice was "arbitrary, capri-

cious, an abuse of discretion, or otherwise not in accordance

with law." Id. at 414, 415. Procedural requirements must

also be met by the agency. Id. at 417. This circuit has

further stated that "agency action is arbitrary and capricious

only where it is ncé supportable on any rational basis."

Brotherhood of Ry. & Airline Clerks v. Burlington North-

ern, Inc., 722 F.2d 380, 381 (8th Cir. 1983). This Court

considers the claims of plaintiffs to determine if the findings

of the Forest Service could have been arbitrary or capricious

as a matter of law.

A. FEDERAL LAND EXCHANGE ACTS

1. Requirement of Finding of Public Interest. Plain-

tiffs contend that there is a factual issue as to whether the

exchange is in the public interest as required by the Federal

Land Policy and Management Act, 43 U.S.C. § 1716. This

statute has been found to be reviewable by at least one court

in an appeal of an administrative decision because of the

specific criteria which must be applied to make such a find-

ing of public interest. Nat’l Coal Ass’n v. Hodel, 617 F.

Supp. 584 (D.C. Cir. 1985) aff'd 825 F.2d 523 (D.C. Cir.

1987). As in that case, it is clear here that the Secretary did

in fact consider the issues set out in section 1716 and came

to the conclusion that the exchange is in the public interests.

This finding of public interest which cannot be said to be

iis

arbitrary or capricious also negates any argument made by

the plaintiffs that a fractioned mineral interest can block the

exchange. Nearly the entire record is geared toward a

finding that this action must be in the public interest. Ex-

amples of the Forest Service findings are documents in the

Environmental Assessments, Responsive Statements, and

Administrative Decisions. Sce, e.g., Environmental Assess-

ment, p.2 (Administrative Record, Volume 1, Tab 1), Re-

sponsive Statement, (Administrative Record, Volume 1, Tab

24), Environmental Assessment Supplement. p.9 (Adminis-

trative Record, Volume 2A, Tab 1), Regional Forest Service

Responsive Statement pp. 11-12 (Administrative Record,

Volume 2A, Tab 1), letter from Chief of Forest Service

(Administrative Record, Volume 3, Tab 49).

Other statutes cited by the plaintiffs, 16 U.S.C. §§

485, 486, 516, 521(d), 555(a), 7 U.S.C. § 1011, and 43 U.S.C.

§ 1715, do not afford plaintiffs their requested remedy. Jn

such statutes there is either no requirement of a finding of

public interest or such decision is committed to agency

- 10 -

discretion by express wording of the statute and needs no

further discussion.

2. A Requirement of Equal or Equalized Valuation.

Under 43 U.S.C. § 1716, lands to be exchanged are to be

equal in value or equalized by a payment not to exceed the

lesser of 25 percent of the value of the land being trans-

ferred out of federal ownership or $15,000. The plaintiffs’

allegations of unequal value fai! under their summary judg-

ment burden in the face of in depth appraisals by the gov-

ernment on this issue. Administrative Record. Volume IV,

Tabs 9-13. Plaintiffs cite only the statute requiring the equal

value rule. Plaintiffs have not raised any issue to show that

the decision of the agency was arbitrary or capricious.

B. BALD EAGLE PROTECTION ACT AND THE

ENDANGERED SPECIES ACT

Plaintiffs contend that the land exchange violates 16

U.S.C. §§ 688 and 1531-1544. The Bald Eagle Protection

Act' does not apply to this case. It establishes civil and

criminal penalties for those who take, or place in the mar-

ket, any bald eagle. By its own terms it does not apply to

this action as the land exchange can in no way be considered

a taking of a bald eagle.

The Endangered Species Act, 16 U.S.C. §§ 1531-

1544, does apply to government actions, however. It pro-

vides that all federal departments and agencies must seek to

conserve endangered species and that any action by an

agency shall not jeopardize the continued existence of any

'The Bald Eagle Protection Act, 16 U.S.C. § 668, states

in part as follows:

Whoever, within the United States or any place

subject to the jurisdiction thereof, without being

permitted to do so as provided in this subchapter,

shall knowingly, or with wanton disregard for the

consequences of his act take, possess, sell, purchase,

barter, offer to sell, purchase or barter, transport, ex-

port or import, at any time or in any manner, any

bald eagle commonly known as the American eagle,

or any golden eagle, alive or dead, or any part, nest,

or egg thereof of the foregoing eagles, or whoever

violates any permit or regulation issued pursuant to

this subchapter, shall be fined not more than $5,000

or imprisoned not more than one year or both... .

-12-

—

endangered species or result in the adverse modification of

their critical habitats as defined by the act and set out in 50

C.F.R. §§ 17.95, 17.96, and 226. 16 U.S.C. § 1536. The land

which is subject to the exchange in this case, however, has

not been found to be critical habitat for either the bald

eagles or peregrine falcons. See Administrative Record,

Volume 2A, Tab 18-5, p.6, Tab 18-4, p.9. Furthermore,

there is ample evidence in the record that the proposed

exchange will not be likely to jeopardize the continued

existence of either species and insufficient evidence was

2 All evidence

raised by the plaintiffs to rebut this evidence.

raised by plaintiffs was considered by the agency. See Ad-

ministrative Record, Volume 2A, Tabs 18-4, 18-5, 18-6. The

Fish & Wildlife Service has concurred in the findings of

these reports. See Administrative Record, Volume 1, Tab

24, p.8. This Court finds as a matter of law, therefore, that

The supplemental affidavit of James Lockhart has been

considered and is found to be insufficient to upset the policy

decision made.

=:

the exchange was not arbitrary or capricious with respect to

these statutes.

C. HISTORIC PRESERVATION ACT

16 U.S.C. § 470(f) (Historic Preservation Act, § 106)

requires federal agencies to afford the Advisory Council on

Historic Preservation the opportunity to comment on any

project that would affect a property which is eligible to be

listed on or is actually listed on the national register of

historic places. To determine if a property should be con-

sidered eligible for the National Register purposes, an agen-

cy must follow the section 106 process as set out in 36

C.F.R. § 800.4. Pursuant to this regulation, defendants have

completed the review and have come to the conclusion that

no part of the property is eligible for the National Register.

Administrative Record, Volume 2A, Tab 1, p.6. The state

historic preservation officer agreed with this determination.

Administrative Record, Volume 1, Tab 1; Volume 3, Tab 37.

In reaching this conclusion the Forest Service took a

number of steps to assure its conformance with 36 C.F.R. §

800.4(a) (identifying historical properties). A professional

service, Overland Associates, Inc., was hired to assist it in

this respect. The service reviewed existing information on

potentially affected historic properties. No historic informa-

tion was found as respects this site. See Administrative

Record, Volume 2A, Tab 1, Overland Report, pp.S-1, 6-1.

The state historic preservation officer was contacted as

shown above. This officer also found no historical informa-

tion on the site. Finally, the regulations call for an agency

to seek information from people who may know of historic

properties in the area, including Indian tribes. Id., §

800.4(a)(1)(3). The Forest Service pursued this require-

ment.

While land exchanges may not have been specifically

discussed at the December 10 and 11, 1985, meeting be-

tween the Black Hills National Forest and traditional Indian

spiritual leaders, the information regarding these exchanges

8%

were made available before the meeting and discussions of

religious sites at that meeting did not include the Dark

Canyon Overlook. Administrative Record, Velome 2B, Tab

31. Much more importantly, on February 21, 1986, letters

were sent to the tribal and spiritual leaders, specifically

discussing the Van Etten exchange among others and re-

questing any information available about the land, or any

suggestions which might he!p the Forest Service determine

whether the land would be eligible for the National Register.

Administrative Record, Volume 3, Tabs 33, 37. One re-

sponse letter was received from Charlotte Black Elk, and

this letter was in favor of continuing with the exchange.

Administrative Record, Volume 3, Tab 37.

At this point the Forest Service decided to continue

in the process to determine if any property would be eligible

for the National Register. 36 C.F.R. § 800.482 states as

follows: "Based on this assessment, the agency official

should determine any need for further actions such as field

surveys and predicted modeling to identify historic proper-

- 16 -

|

ties." The Forest Service in this case did hire a professional

survey to be completed on the Dark Canyon Overlook. The

survey was completed by Overland Associates, Inc., and a

finding of no cultural sites was submitted, to which the state

historic officer concurred. Volume 2A, Tab 1. Accordingly,

the Court finds compliance with 36 C.F.R. § 800.4(c)(3), and

the Historic Preservation Act.

While there is some marginal evidence that the

findings of the report were inaccurate, this Court certainly

cannot say that a decision based on an expert’s report was

arbitrary and capricious.’ "Where, as here, the agency pre-

sents scientifically respectable conclusions which appellants

are able to dispute with rival evidence of presumably equal

dignity, we will not displace the administrative choice nor

will we remand the matter to the agency in order that the

*The supplemental affidavit of James Lockhart tends to

establish the possible existence of an old quarry and a cave

on the property. The Overland Report does not mention

these features, but, instead, makes a general finding that

there is no site on the land eligible for the National Regis-

ter.

..

discrepant conclusions be reconciled.” State of Louisiana ex

rel. Guste v. Verity, 853 F.2d 322, 329 (Sth Cir. 1988).

D. FIFTH AMENDMENT CONCERNS

Plaintiffs have neither addressed nor briefed this

issue adequately. They point to no property interest that

they have which would give them any due process rights

beyond what would be considered arbitrary and capricious

with respect to agency procedures.

E. THE RELIGIOUS PRACTICE CONTENTIONS

1. The First Amendment Contentions. One of the

issues raised by plaintiffs is that the decision by the Forest

Service failed to properly consider the impact of the contem-

plated use of the land on Indian religious practices, specifi-

cally those of plaintiff Gemma Lockhart. In a first amend-

ment context, this Court’s review is plenary. See Hill v.

Blackwell, 774 F.2d 338, 343 (8th Cir. 1985). The Supreme

18 -

cate

Court has set forth a two-part analysis under the free exer-

cise clause. First considered is whether the challenged

governmental action does in fact create a burden on the

exercise of the claimant’s religion. See United States v. Lee,

455 U.S. 252, 256, 257, 102 S. Ct. 1051, 1054-55 (1982). Ifa

burden exists, the second part of the analysis is a weighing

of the nature of the burden, the significance of the govern-

mental interest at stake, and the degree to which that inter-

est would be impaired by an accommodation for the reli-

gious practice. See Bowen v. Roy, 476 U.S. 693, 106 S. Ct.

2147 (1986); United States v. Means, 858 F.2d 404 (8th Cir.

1988). Even assuming that the land exchange will have

severe adverse affects on the practice of religion, incidental

affects of government programs which may make it more

difficult to practice certain religions and which would have

no tendency to coerce individuals into acting contrary to

their religious beliefs, do not require government to bring

forward a compelling justification for its otherwise lawful

actions. See Lyng v. N.W. Indian Cemetery Protective

-19-

Ass’n, 108 S. Ct. 1319 (1988); United States v. Means, 858

F.2d 404 (8th Cir. 1988). In this case, there was no claim

during the administration appeal that the exchange would

make it impossible for plaintiff Gemma Lockhart to practice

her religion, nor was there any claim that the action would

coerce her into acting contrary to her religious beliefs. Her

first amendment claim therefore fails.

2. The Indian Religious Freedom Act. In Crow v.

Gullet, 541 F. Supp. 785 (D.S.D.) aff'd, 706 F.2d 856 (1982)

it was stated that "[t]he act does not create a cause of action

in federal court for violation of rights of religious freedom

but is merely a statement of the policy of the federal govern-

ment with respect to traditional Indian religious practices."

This Act grants no more rights than exist under the first

amendment freedom of religion analysis discussed above.

Id. at 793. As to plaintiffs’ argument that the Forest Service

created the expectation of meaningful Indian input, they

have failed to point to an established policy requiring prior

- 20 -

ieatieteeneeeneeenieteaitaate ieee

' |

consultation with the tribe as required by the case they cite,

Oglala Sioux Tribe v. Andrus, 603 F.2d 707, 721 (8th Cir.

1979). Furthermore, as set forth in the Historic Preserva-

tion Act section of this memorandun, traditional Indian

leaders and tribes have been consulted.

F. ENVIRONMENTAL ASSESSMENT CONTENTIONS

AND THE DECISION BY THE FOREST SERVICE

NOT TO ORDER AN ENVIRONMENTAL IMPACT

STATEMENT (EIS).

The National Environmental Policy Act (NEPA), 42

U.S.C. §§ 4321 - 4370, requires preparation of an environ-

mental impact statement (EIS) only if the responsible feder-

al agency determines in the first instance that a major feder-

al action will significantly affect the quality of the human

environment. 42 U.S.C. § 4332(2)(c); see also Ringsred v.

Duluth, 828 F.2d 1305 (8th Cir. 1987); Olmstead Citizens for

Better Community v. United States, 793 F.2d 201 (8th Cir.

1986).

NEPA has applied to situations where the actions

are minor but formed a legal basis for enabling the private

oe

parties to act. Winnebago Tribe of Nebraska v. Ray, 621

F.2d 269 (8th Cir. 1980). The Ninth Circuit has stated in

Nat’l Forest Preservation Group v. Butz:

While the federal defendants are not them-

selves planning to take action significantly af-

fecting the quality of the human environment,

42 U.S.C. § 4332(c), the intervenors plan such

action and the exchange is an act without

which such action could not be taken. The

land exchange is thus analogous to the licens-

ing of or granting of federal funds to a non-

federal entity to enable it to act. Such feder-

al enablement has consistently been held to

be subject to NEPA.

Cited in State of South Dakota v. Andrus, 462 F. Supp. 905

(D.S.D. 1978). Therefore, the homes which the intervenor

plans to build must be included in any environmental assess-

ment even though no EIA would have to be prepared if

there were no exchange and the intervenor was going to

build the houses on the land he owned before the exchange.

This was done by the agency.

The standard under which an agency’s decision not

to require an EIS is well settled by the Eighth Circuit, but

different from the usual arbitrary and capricious standard of

i)

bho

'

iene ernie

——

review set forth above. The burden of proof is upon the

challenging party to show that there were facts omitted from

the Administrative Record which, if true, would show that

the action could have a substantial impact on the environ-

ment if such facts are established and they are of sufficient

significance to warrant shifting the burden of proof the

agency must then demonstrate that its negative determina-

tion was reasonable under the circumstances. This test is

one of reasonableness, not whether the agency’s determina-

tion was arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law. See Minn. Public

Interest Research Group v. Butz, 498 F.2d 1314 (&th Cir.

1974) (en banc).

This Court finds as a matter of law that there were

no facts omitted from the Administrative Record which

could have a substantial impact on the environment. The

plaintiffs list some of the factors used to determine whether

an action is considered "significant" under NEPA, 40 C.F.R.

§ 1508.27, and raise the issues of decreased air quality, the

impact on soil and water conditions in the area, and the

impact on aesthetics from the building of up to sixteen

homes on the one hundred acres. These concerns were ad-

dressed by the Environmental Assessment Update, Adminis-

trative Record, Volume III, Tab 44. The Forest Service

came to the conclusion that there would be no significant

environmental impact after reviewing all of these concerns

and obtaining yet another professional report on the geology

of the land prepared by Wyss, Inc. Id. All of plaintiffs’ con-

cerns have been considered by the Forest Service and placed

in the Administrative Record. The decision not to prepare

an EIS was made in full compliance with NEPA and the

regulations promulgated thereunder.

The agency action in this case was not in violation of

any laws or regulations. Its findings and conclusions were

not arbitrary, capricious, or an abuse of discretion. Its

actions did not violate the first amendment rights of any

plaintiff, and the decision not to prepare an EIS was a

reasonable one.

ee

Judgment shall be entered in accordance with this

memorandum opinion.

Dated this 18th day of September, 1989.

BY THE COURT:

RICHARD H. BATTEY

UNITED STATES DISTRICT

JUDGE

ATTEST:

WILLIAM F. CLAYTON, CLERK

By

Deputy Clerk

(SEAL)

25

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No

James Lockhart,

Gemma Lockhart,

Appellant,

Sandra Reub, American

Indians Against Desecr

Darral Kenops, Forest

Supervisor, Black Hills

National Forest, United

Forest Service; Gary

Cargill, Regional Forest

Service; F. Dale

Robertson, United States

Forest Service; John

Block, Secretary of Agri

culture; Verla Van Etten,

Appelle es

Submitted

I ike a

Before WOLLMAN. Circ

RO.§5'77

it

Judg

(

SSD

il from the Unite

, HEANEY, Seni

cuit Judge, and MAGILL. Circuit Judges

'

i

d

tes District Court for the

strict of South Dakota

f

MAGILL, Circuit Judge.

Gemma Lockhart appeals from an order of the

district court’ granting summary judgment to the govern-

ment in her action to enjoin the exchange of a parcel of

federal land. On appeal, Lockhart argues that the Forest

Service’s decision to go ahead with the exchange without

preparing an environmental impact statement (EIS) was

arbitrary and capricious and violated the National Environ-

mental Policy Act (NEPA). Lockhart also argues that the

decision to proceed with the exchange violated the first

amendment of the Constitution and the American Indian

Religious Freedom Act (AIRFA) because the exchange will

interfere with the exercise of Lockhart’s religion and because

Indian religious leaders were not consulted. Because we

find that the Forest Service’s decision was not arbitrary and

'The Honorable Richard H. Battey, United States Dis

trict Judge for the District of South Dakota

)

“~

capricious and did not violate NEPA, AIRFA or the first

amendment, we affirm.

i. BACKGROUND

A. The Administrative Process

[his action concerns a land exchange between the

federal government and Verla Van Etten, the intervenor

below. Proceedings have been going on for nearly nine

years. On September 22, 1982, Van Etten proposed ex

changing 160 acres of land she owned in the Black Hillis of

South Dakota for 100 acres owned by the Forest Service in

another part of the Black Hills. It is this second parcel,

located along the edge of Dark Canyon in a rural area near

Rapid City, that the parties are arguing about. The purpose

of the exchange, from the Forest Service's point of view, was

to consolidate federal lands; the Dark Canyon parcel was

surrounded on ali sides by private land, whereas the land

offered by Van Etten was surrounded on all sides by land

that already belonged to the Forest Service. The Van Etten

parcel was also particularly desirable to the Forest Service

because it is important wildlife habitat. Van Etten wanted

to develop the Dark Canyon parcel; she planned to build

sixteen luxury homes on it. On October 6, 1983, the Re-

gional Forester issued an environmental assessment (EA) as

required by § 254.10 of the Forest Service regulations gov-

erning land exchanges, 36 C.F.R. § 254.10(b), to ensure

aainga with the National Environmental Policy Act

(NEPA), 42 U.S.C. §§ 4331-4347. NEPA requires that an

environmental impact statement (EIS) be done for all "ma-

jor federal actions significantly affecting the quality of the

human environment.” 42 U.S.C. § 4332(2)(C) (1988). An

agency prepares an EA to determine whether an EIS is

required under this standard. The EA concluded that the

exchange would have no significant impact on the environ-

ment and that therefore no EIS was required. However, the

EA stated that approval of the exchange was "in concept

only"; final approval was expressly conditioned on comple-

ee

tion of studies of cultural and mineral resources with a

finding that they would not be significantly affected.

When appraisals showed that Van Etten’s land was

worth less than the federal land, Van Etten offered an addi-

tional eighty-acre parcel in the same area to equalize the

land values. On January 3, 1985, the Regional Forester

approved the revised exchange proposal and issued a revised

EA, again conciuding that the exchange would have no

significant impact on the environment and that no EIS need

be done. During the next month, February, Lockhart and

five other Dark Canyon landowners appealed the decision to

the Forest Service pursuant to 36 C.F.R. § 211.18. They

complained that developing the land would adversely affect

the air, water, and soil, would harm wildlife, including en-

dangered and threatened species, and would interfere with

Indian religious ceremonies. On June 7, 1985, the Chief of

the Forest Service, Max Peterson, remanded the matter to

the Regional Forester, saying that the Regional Forester’s

approval of the project was "procedurally deficient” because

(1) the proposed exchange of the second parcel of eighty

acres had never been publicly advertised, as required by 36

C.F.R. § 254.8; (2) the earlier approval had been contingent

on studies of cultural and mineral resources that were never

done; and (3) the revised EA did not discuss the environ-

mental impact of Van Etten’s planned use of the land.

Chief Peterson also said that the EA ought to discuss the

applicable state and county regulations and how they would

affect the intended use of the property. On Ju'y 9, 1985, the

Regional Forester issued a supplemental EA that included

the missing studies and other supporting documentation,

including the applicable zoning regulations.

In August 1985, Lockhart and two of the other

original administrative appellants appealed again. On Sep-

tember 2, 1986, Chief Peterson again sent the case back to

the Regional Forester for supplementation of the adminis-

trative record under 36 C.F.R. § 211.18(q).’? The Chief said

"If the appeal record is considered inadequate to affirm

or reverse a decision, the Reviewing Officer may suspend

the appeal process and request additional information, or

+

IANO iar nares a mentee: mace ens ee ed

that because Van Etten’s plans for developing the land had

become more definite, the record should be supplemented

to consider information about the environmental effect of

those plans. In his letter ordering the remand, Chief Peter-

son said, "[W]e are concerned that the potential environ-

mental consequences . . . are not sufficiently discussed" in

the EA, and he ordered the Regional Forester "to specifical-

ly address the direct effects of Van Etten’s proposal on the

soil, water, and air quality on and in the vicinity of the

parcel, as well as its indirect effects on highway traffic,

esthetics, and forest fire problems."

On November 4, 1986, the Regional Forester issued

an environmental assessment update (EA update or final

EA) with a geological study of the land attached. The EA

update addressed the issues the! Chief had specified, albeit

not in great detail. On May 7, 1987, Dale Robertson, the

new Chief of the Forestry Service, approved the exchange.

remand the case for further action.” 36 C.F.R. § 211.18(q)

(1989).

When the Secretary of Agriculture declined to review that

determination, the decision became final under 36 C.F.R. §

211.18(f)(6). The exchange could not take place, however,

because Public Land Order 725 (PLO 725), issued June 4,

1951, had classified the land for public uses and made it

illegal for the government to transfer it. An injunction

issued in National Wildlife Fed’n v. Burford, 835 F.2d 305

(D.C. Cir. 1987), prohibited the government from changing

the classification. Therefore, the case was in procedural

limbo for some time after the Chief’s decision.

B. Court Proceedings

On August 4, 1987, Lockhart and two other Dark

Canyon landowners who had appealed at the administrative

level filed this action, alleging violations of NEPA, the

Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1544, the

Bald Eagle Protection Act, 16 U.S.C. § 668, § 106 of the

National Historic Preservation Act, 16 U.S.C. § 470f, the

American Indian Religious Freedom Act (AIRFA), 42

Se

U.S.C. § 1996, the Federal Land Exchange Acts, 16 U.S.C.

§§ 485, 486, 516, 521d, 5551; 42 U.S.C. §§ 1715, 1716; 7

U.S.C. § 1011, and the first and fifth amendments to the

federal Constitution. The action sought declaratory and

injunctive relief to prevent the Forest Service from proceed-

ing with the exchange unless and until the cited statutes

were complied with. The parties stipulated to a stay, howev-

er, because of PLO 725 and the injunction in Burford.

Then, on November 4, 1988, the D.C. Circuit vacated the

Burford injunction, and six months later PLO 725 was re-

voked with respect to the land in this suit. 54 Fed. Reg.

17,708 (1989) (codified at 43 C.F.R. PLO 6728). The revo-

cation of PLO 725 became effective May 25, 1989; shortly

thereafter, the government announced that it intended to go

ahead with the exchange. On July 5, 1989, the district court

granted a temporary restraining order (TRO) prohibiting the

exchange, subject to posting of a $50,000 bond by plaintiffs.

When the plaintiffs did not post the bond, the court lifted

the TRO and allowed the exchange subject to the require-

ment that Van Etten not cause "any physical change or

destruction of the environment or property" until the case

was over. The exchange occurred on July 7, 1989.’ The

district court granted the government’s motion for summary

judgment on September 18, 1989, holding that the agency’s

decision not to prepare an EIS was not arbitrary and capri-

cious. Lockhart filed a notice of appeal on November 17,

1989. On appeal, she claims violations only of NEPA,

AIRFA, and the first amendment. The other two federal

plaintiffs did not appeal

Il. DISCUSSION

We review the district court’s decision de novo.

"[T]he appellate court must render an independent decision

on the basis of the same administrative record as that before

the district court; the identical standard of review is em-

ployed at both levels; and once appealed, the district court

*On approximately August 21, 1990, Van Etten put the

land up for resale.

- 10 -

re el

decision is accorded no particular deference." Brown v.

United States Dep’t of Interior, 679 F.2d 747, 748-49 (8th

Cir. 1982) (quotation omitted). Under § 706(2)(A) of the

Administrative Procedure Act, an informal determination by

an agency must be set aside if it is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)(A) (1988). An agency’s decision not

to prepare an EIS is reviewed under this standard. Marsh v.

Oregon Natural Resources Council, 109 S. Ct. 1851 (1989);

Goos v. LC.C., 911 F.2d 1283, 1291-92 (8th Cir. 1990).*

“Before Marsh, the Eighth Circuit had reviewed agency

decisions not to prepare an EIS under a standard of rea-

sonableness in the circumstances. See, e.g., Minnesota Pub.

Interest Research Group v. Butz, 498 F.2d 1314, 1320 (8th

Cir. 1974). In Goos, 911 F.2d at 1292, a panel of this court

recognized that these earlier cases were incorrect; however,

in Marsh, the Supreme Court said that in practice the differ-

ence between the two standards is not of much consequence

and should not require extensive reworking of established

NEPA law. 109 S. Ct. at 1861 n.23.

11 -

A. NEPA

NEPA requires that an EIS be done for all "major

federal actions significantly affecting the quality of the hu-

man environment." 42 U.S.C. § 4332(2)(C). "Affecting" is

defined as “will or may have an effect on.” 40 C.F.R. §

1508.3. To determine whether the proposed action "signifi-

cantly" affects the environment requires consideration of a

variety of factors under 40 C.F.R. § 1508.27.

When the federal government exchanges land, it

must consider the environmental impact not only of the

exchange itself, but also of the proposed use of the federal

land once it passes into private hands. National Forest

Preservation Group v. Butz, 485 F.2d 408, 411-12 (9th Cir.

1973). Therefore, the Forest Service was required to consid-

er the effects of Van Etten’s planned development in deter-

mining whether the exchange would significantly affect the

human environment.

Lockhart claims that the Forest Service’s decision

was arbitrary and capricious because the Service did not

properly consider the factors enumerated in § 1508.27. She

argues that the project significantly affects the environment

and that therefore an EIS is required. While we agree that

the agency’s consideration of some points was not as careful

as it could have been, we cannot say that the Forest Ser-

vice’s consideration of environmental factors was so deficient

as to make its decision arbitrary and capricious. We now

address Lockhart’s specific contentions.

1. Water Quality

Lockhart contends that effluent from the sewage

systems of the houses to be constructed could seep through

the ground and through rock fissures into the aquifer that

supplies water to her and her neighbors or onto the walls of

Dark Canyon. From the canyon it would drip down into

Rapid Creek, directly below, which is the water supply for

Rapid City. The study submitted with the final EA of No-

vember 1986 discusses possible problems with sewage dispos-

al and acknowledges that sewage could surface on the can-

yon walls. The study makes recommendations tor proper

placement of septic tanks and leach fields that would avoid

the problem--but then goes on to say that such placement

may not be possible on four of the sixteen lots. However,

the study also points out that the applicable zoning regula-

tions’ contain stringent requirements for safe sewage dis-

posal, and thus concludes that there would be no significant

impact on the environment. After reviewing the zoning

regulations, which require that sewer systems comply with

detailed design and specification requirements and be ap-

proved by the city engineer, we find that the Forest Service's

conclusion that the zoning regulations will prevent any

significant impact on the environment was not arbitrary and

capricious. See Maryland-National Capital Park & Planning

Comm'n v. United States Postal Serv., 487 F.2d 1029, 1036-

37 (D.C. Cir. 1973) (compliance with zoning laws tends to

‘It is undisputed that the development would be subject

to both the Pennington County and Rapid City zoning

ordinances. The city ordinance applies because the land is

within three miles of the city limits.

.14-

show that impact of the land use is not "significant"); Sierra

Club v. Cavanaugh, 447 F. Supp. 427, 432 (D.S.D. 1978)

(same; "the Federal agency is to be held to no stricter re-

quirement of assuring environmental quality than local

residents acting through their representatives demand"). We

do note, however, that according to the study there seems to

be no safe way to dispose of sewage for four of the lots: we

assume that unless a safe way is found the zoning commis-

sion will not allow houses to be built on those lots.

Z. Air Quality, Soil, Esthetics

These are all addressed in the final EA, and we find

that the conclusion of no significant impact was not arbitrary

and capricious.

3. Endangered and Threatened Species

The NEPA regulations require that the agency con-

sider "[t]he degree to which the action may adversely affect

an endangered or threatened species or its habitat that has

-15-

been determined to be critical under the Endangered Spe-

cies Act of 1973." 40 C.F.R. § 1508.27(9). Lockhart argues

that the proposed development will harm bald eagles and

peregrine falcons that inhabit the area. Bald eagles and

peregrine falcons have been classified as protected species

under the Endangered Species Act (ESA), 16 U.S.C. §§

1531-1544 (1988). On appeal, however, Lockhart claims a

violation only of NEPA, not of the ESA itself. Lockhart

claims that the Forest Service failed to give proper weight to

sightings of the birds by local landowners and that the Ser-

vice’s own studies were sloppily done and inaccurate, there-

fore, she argues, the Service erroneously and arbitrarily con-

cluded that the proposed development would have no signif-

icant impact on the endangered birds.

The evidence does conflict as to whether eagles and

falcons frequent or nest on the tract. The record contains

several letters and affidavits reporting sightings of eagles and

falcons and claiming that they nest on the site; the Forest

Service’s opposite conclusion, however, is also well support-

- 16-

ed by evidence. The Forest Service conducted two field

surveys of the site and consulted several other relevant

studies that had already been done. The studies conclude

that Dark Canyon is not critical habitat for either species.

No nesting sites were found during the field surveys, nor did

the surveyors observe any eagles or falcons on or near the

land. Bald eagles are not believed to nest in the Black Hills

at all; they do spend the winter there, but the Dark Canyon

site is not in a known winter concentration area, according

to the studies. As for the peregrine falcons, the last con-

firmed sighting of a falcon eyrie was in Dark Canyon, but

that was in 1960. The recent studies done by the Forest

Service conclude that Dark Canyon is not prime habitat for

peregrines because the cliffs are not high enough and be-

cause there is too much human activity nearby. Dark Can-

yon was rejected as a release site for these very reasons

when the Forest Service was trying to reintroduce peregrine

falcons into the Black Hills in 1979.

While the Forest Service’s conclusion may not be

undisputed, it is certainly not unsupported by evidence. As

the court said in Louisiana ex rel. Guste v. Verity, "[OJur

deference to the agency is greatest when reviewing technical

matters within its area of expertise, particularly its choice of

scientific data and statistical methodology. ... [WJhere, as

here, the agency presents scientifically respectable conclu-

sions . . . we will not displace the administrative choice."

Louisiana ex rel. Guste v. Verity, 853 F.2d 322, 329 (Sth Cir.

1988). Therefore, we find that the Forest Service’s determi-

nation that the exchange would have no significant impact

on endangered and threatened species was not arbitrary and

capricious.

4. Historic and Cultural Resources

Under the NEPA regulations, in determining wheth-

er the proposed action will significantly affect the environ-

ment, the agency must consider “unique characteristics of

the geographic area such as proximity to historic or cultural

-18 -

aaa aiid

resources," 40 C.F.R. § 1508.27(3), and "[t]he degree to

which the action may adversely affect . . . sites . . . listed in

or eligible for listing in the National Register of Historic

Places or may cause loss or destruction of significant scien-

tific, cultural, or historic resources," 40 C.F.R. § 1508.27(8).

The Forest Service commissioned a survey of the tract to

identify any historic or archaeological sites; none were

found. It also searched its files to find out if any such sites

had been previously identified, again without success. The

final EA concluded that the tract contained no historic or

cultural resources, and the South Dakota Historic Preserva-

tion Office concurred in the finding. Thus, the Forest Ser-

vice did make an effort to determine whether any historic or

cultural resources would be affected by the proposed devel-

opment, and the requirements of NEPA were met.

5. State and Local Law

Subsection (10) of 40 C.F.R. § 1508.27 requires that

an agency consider whether its proposed action "threatens a

~. 2

violation of Federal, State or local law or requirements

imposed for the protection of the environment." Although

the EA included copies of and discussed the applicable

county and city zoning ordinances, it did not discuss any

other state or local law. The state statutes Lockhart cites in

her brief are broad provisions expressing state policy in

favor of safe waste disposal, against water pollution, and in

favor of maintaining air quality. None of them cover any

ground not covered by NEPA. Hence, although the Forest

Service should have specifically referred to these statutes, its

error was harmless because the EA covered the same subject

matter.

6. Other Effects

Citing 40 C.F.R. § 1508.27, Lockhart claims that the

Forest Service was required to consider the sociological and

community effects of the land exchange and housing devel-

opment; however, § 1508.27 contains no language to that

effect. It does say, as Lockhart points out, that the agency

- 20 -

Dcitinsinteieeiiile. S

should consider "[t]he degree to which the effects on the

quality of the human environment are likely to be highly

controversial." 40 C.F.R. § 1508.27(4). Lockhart claims this

requirement was not met because the Forest Service got

eight letters from neighbors protesting the exchange, none in

favor of it, and yet did not discuss public opposition in the

EA. This argument fails because "controversial" refers to

the existence of a "substantial dispute . . . as to the size,

nature, or effect of the major federal action rather than to

the existence of opposition to a use." See Rucker v. Willis,

484 F.2d 158, 162 (4th Cir. 1973); North Dakota v. Andrus,

483 F. Supp. 255, 258-59 (D.N.D. 1980).

Lockhart points to the affidavit of Dr. Ken Fish as

evidence that the Forest Service overlooked the "[uJnique

characteristics of the geographic area," 40 C.F.R. §

1508.27(3), and "[t]he degree to which the action . . . may

cause loss or destruction of significant scientific, cultural, or

historical resources," 40 C.F.R. § 1508.27(8). Dr. Fish, a

professor of biology, stated that every year he takes his

ee

students on a field trip to Dark Canyon and that it is of

unique educational and scientific value to him and his stu-

dents. While the plaintiff in a NEPA suit may submit evi-

dence showing substantial environmental issues the agency

missed, use of the area for biology field trips does not by

itself qualify as a substantial environmental issue that would

render the agency’s decision arbitrary and capricious, partic-

ularly in light of the fact that the information in Dr. Fish’s

affidavit could have been presented earlier, during the ad-

ministrative process.

7. Resale

In September 1990, Lockhart submitted a letter

calling the attention of the court to a new development in

the case: Van Etten was advertising the land for sale, ap-

parently having abandoned her plans to develop it herself.

Lockhart argues that the new purchaser could pursue devel-

opment plans different from those considered by the Forest

Service, with potentially disastrous consequences to the

<i

|

environment. She urges that the district court’s grant of

summary judgment should be reversed and the case remand-

ed on this ground.

When the government sells or exchanges federal

land, it must consider the environmental impact of the

proposed use of the federal land by the private purchaser,

but it need not consider the possible impact of use by hypo-

thetical subsequent purchasers. Once the land Passes into

private hands, later sales are no longer subject to NEPA.

We would scrutinize the matter more closely if there were

anything to suggest that Van Etten’s purchase was a sham--

that she obtained the land in Order to resell it to someone

else so that the real purchaser could evade NEPA scrutiny.

Here, however, the resale is clearly a product of the long

administrative and judicial process rather than an attempt to

evade it.° This court’s task is to make sure the Forest Ser-

vice considered the information available at the time it made

ee

"According to letters in the record, Van Etten found it

difficult to pay the interest payments on the land without the

anticipated revenue from selling the houses.

oo

Ne

its decision; if the agency’s decision was proper at the time it

was made, our inquiry is at an end.

B. AIRFA/First Amendment

Lockhart next argues that the Forest Service violated

the American Indian Religious Freedom Act (AIRFA),

which provides: "[I]t shall be the policy of the United States

to protect and preserve for American Indians their inherent

right of freedom to believe, express, and exercise the tradi-

tional religions of the American Indian . . . including but not

limited to access to sites, use and possession of sacred ob-

jects, and the freedom to worship through ceremonials and

traditional rites.". 42 U.S.C. § 1996 (1988). First, Lockhart

claims a procedural violation of AIRFA in that the Forest

Service failed to consult with Indian spiritual leaders before

making its decision. AIRFA contains no such consultation

requirement. AIRFA is merely a statement of federal policy

to protect Indians’ exercise of their religion, it confers no

cause of action. Lyng v. Northwest Indian Cemetery Protec-

24 -

tive Ass’n, 108 S. Ct. 1319, 1328 (1988). The Original ver-

sion of AIRFA contained a one-time consultation require-

ment; section 2 of the session law, left uncodified, directed

that all federal departments and agencies evaluate their poli-

cies and procedures in consultation with native American

traditional religious leaders to determine changes necessary

to preserve Indian religious rights and practices, but this

one-time review was to be completed by August 11. 1979,

three years before the Van Etten exchange was proposed.

Pub. L. No. 95-341, § 2, 92 Stat. 470 (1978); see Lyng, 108 S.

Ct. at 1328. Also, the language of the section indicates that

it required consultation about a generalized revamping of

agency policies and Procedures, not about specific decisions

like this one.’

sees ee ee

‘Although it is legally irrelevant, we note that the record

Shows that the Forest Service erred on whether a consul

tation had taken place: its summary of a conference with

Indian spiritual leaders States that the Van Etten exchange

was discussed, whereas the transcript of the conference

Shows that it was not

Second, Lockhart claims a substantive violation of

AIRFA. She contends that AIRFA and the free exercise

clause of the first amendment require the agency to take

into account Indian religious concerns in making its decision,

citing Lyng for the proposition that agencies have a legal

duty to accommodate Indian religious practices. While the

Supreme Court in Lyng did say that "(t]he Government's

rights to the use of its own land. . . need not and should not

discourage it from accommodating religious practices like

those engaged in by the Indian respondents," 108 S. Ct. at

1328, this language is purely precatory. The Court’s holding

was that AIRFA creates no judicially enforceable rights.

See id. at 1328; see also Crow v. Gullet, 706 F.2d 856, 858

(8th Cir.) (AIRFA creates no rights beyond those granted by

the first amendment), cert. denied, 104 S. Ct. 413 (1983).

The first amendment does not require the government to

conduct its own affairs to comport with the religious beliefs

of its citizens. Lyng, 10 S Ct. at 1325; see also United

States v. Means, 858 F.2d 404, 407 (8th Cir. 1988) (listing

- 26 -

cases refusing to overturn governmental land management

decisions challenged by Indians on free exercise grounds),

cert. denied, 109 S. Ct. 3227 (1989). In fact, the Court

commented in Lyng, to limit the government’s use of its own

land to avoid disrupting religious ceremonies might well

violate the first amendment as it would impose a “religious

servitude" on the property and subsidize the religion in

question. 108 S. Ct. at 1328.

Lockhart also appears to base her claim of failure to

consider religious factors on NEPA, as she complains of the

"arbitrary and capricious manner iri which religious factors

were ignored" and says there is evidence of a "substantial

environmental impact" on Indian religious practices. Reply

Brief at 17. NEPA, however, does not mandate consider-

ation of a proposal’s possible impact on religious sites or

observances.

III.

Because we hold that the Forest Service complied

with the requirements of NEPA, that it did not violate

AIRFA or the first amendment, and that its decision to

proceed with the land exchange was not arbitrary and capri-

cious, we affirm the decision of the district court.

A true copy.

Attest:

CLERK, U. S. COURT OF

APPEALS, EIGHTH CIRCUIT.

-. -

haan

UNITED STATES COURT OF APPEALS

for the Eighth Circut

No. 89-5575SD

Gemma Lockhart,

Appellant

vs. 7

Darral Kenops, etc., et al.,

Appellees.

Order Denying Petition

For Rehearing and Suggestion

For Rehearing En Banc

Appellant's pro se suggestion for rehearing

en banc has been considered by the court

and is denied by reason of the lack of a

majority of the active judges voting to

rehear the case en banc.

Petition for rehearing by the panel is also

denied.

April 26, 1991

Order Entered at the Direction of the Court

Michael E. Gais

United States Court of Appeals ... Pg 2

Clerk, U.S. Court of Appeals, Eight Circuit

UNITED STATES FOREST SERVICE

On Re: )

) STATEMENT OF ISSUES

Van Etten Land )

Exchange )

TO: Regional Forester

Rocky Mountain Region

11177 West Eighth Avenue

P.O. Box 25127

Lakewood, Colorado 80225

This appeal is submitted by Ms. Gemma Lockhart,

an affected land owner, pursuant to 36 C.F.R. 211.18. The

actions being appealed from are the Revised Decision No-

tice of January 3, 1985 and the Decision Notice of October

6, 1983, incorporated by reference therein.

On September 22, 1982, Verla Van Etten filed a

Statement of Intent to exchange private land for 100 acres

of Forest Service land described as E 1/2 NW 1/4 NW 1/4,

NE 1/4 NW 1/4, NW 1/4 NE 1/4 of Section 13, TIN, R6E,

BHM, Pennington County, South Dakota. Mrs. Van Etten

wishes to obtain said land for a 16 unit housing develop-

ment, which will overlook Dark Canyon where Ms. Lockhart

and her family own and use land for domestic and ceremoni-

al purposes. Mrs. Van Etten originally offered approximate-

ly 160 acres of fee patent land for said exchange.

On October 6, 1983, Craig Rupp, Regional Forester,

made a finding of No Significant Impact and issued an

Environmental Assessment (EA) Decision Notice selecting

the first of two examined alternatives, deciding to continue

administrative processing of the land-for-land exchange

proposed. According to pages 2 and 3 of the EA Decision

Notice, the "approval in concept only" was to be contingent

upon the completion of a Cultural Resource Examination

and Report on Selected private land to be obtained there-

fore. The EA and REA inadequately assesses the cultural

resources which might be affected by the proposed exchange

and the housing project. The EA and REA also failed to

adequately assess the effect on the human environment

through deterioration of the air quality, esthetics, and peace

and quiet which would result from the proposed develop-

ment of what has been public land, on the landowners

around the proposed project. Finally, the EA and REA

a

failed to adequately assess the impact on Ms. Lockhart’s

exercise of her Indian religious ceremonies, which the pro-

posed project would overlook and thereby disrupt.

Additionally, though a landowner in the immediate

vicinity, Ms. Lockhart, as weli as many of her neighbors, did

not receive actual notice of this proposed land exchange and

resulting housing project until a few days ago. Thus, the

notice to affected parties was inadequate necessitating a

hearing where such individuals and families can give con-

structive input on how the Forest Service exchange and the

proposed housing project is not in the public interest.

For all the above-stated reasons, the REA Decision

and the incorporated EA Decision should be reversed since

they violate the Federal Land Policy and Management Act,

43 U.S.C. 1716; the General Land Exchange Act, 16 U.S.C.

485 and 486; the National Historic Preservation Act, 16

U.S.C. 470 et seq.; the National Environmental Policy Act,

42 U.S.C. 4321 et seq.; Executive Order No. 11593; the

Historic and Archaeological Data Preservation Act, 16

Be.

U.S.C. 469 et seq.; the First Amendment to the U.S. Consti-

tution; the Indian Religious Freedom Act, 42 U.S.C. 1996;

the Endangered Species Act, 16 U.S.C. 1531 et seq.; and the

Fifth Amendment right to Due Process, embodied in the

U.S. Constitution.

Dated this day of February, 1985.

Respectfully submitted,

GEMMA LOCKHART

Route 8, Box 4478

Rapid City, S.D. 57702

United States Department of Agriculture

Forest Servie

Black Hills National Forest -

Custer, South Dakota 57730

Reply to: 2630 Habitat Sept. 7,1978

Subject: Identification of Essential

Habitat for Endangered Species

and Threatened Species

| To: Regional Forester, R-2

Attached is the information requested

_ concerning identification of essential

habitat for endangered or threatened

“species.

The attached material includes descriptions

of four areas determined to be essential

| hated tat for the peregrine falcon on the

Black HIlis National Forest. Also

needed. is a map of the Black Hills

‘National Forest, which illustrates defined

boundaries of identified essential habitat

areas.

:

:

2

Reply To: 2630 Habitat ... . Page 2

These areas are presently unoccupied and

are under consideration as possible

peregrine release areas.

Ww. 8.

for

James R. Mathers

Forest Supervisor

Enclosures

DARK CANYON

7. Coordinates:

Latitude: 44°8' South to 43°55'

Longitude: 103°39' East to 103°16'

2. Description of Boundaries.

The north border is marked by the

Lawrence-Pennington County lines, from

where East Gimlet Creek crosses the county

line on the west, to where Forest Service

road 166 crosses the county line to the

east. From Forest Service road 166 the

border continues along 166 into Rapid City.

On the west, bhe border extends along East

Gimlet Creek to Forest Service road 231,

along 231 to Tigerville and from Tigerville

along 231 into Hill city. From Hill City

the border goes east along Highway 385 to

Sheridan Lake and from Sheridan Lake along

Forest Service road 392 to Rapid City.

3. Breakdown of Acreage.

Dark Canyon ... . Page 2

Unoccupied Habitat: Forest Service

_._ 119,700 acres

Private:

30,700 acres

Total:

150,400 acres

Occupied: None.

4. Background.

Dark Canyon lies at an elevation of 3500

feet to 4500 feet, in the east-central

Black Hills. It contains cliffs of

moderate to low height (up to 75 feet)

which have a dominating view of the

Canyon. These cliffs contain sufficient

potholes and ledges to provide nests for

Peregrine Falcons.

There is an abundance of avian prey with-

in the Canyon, including small to medium

sized terrestial birds, shorebirds, and

waterfouwl. In addition, there are

irrigated croplands, two large reservoirs,

Dark Canyon ... .Page 3

cin meadows and plains easily within the

Peregrine Falcon's hunting range.

Present and potential human disturbance

may be a negative factor in establishing

Peregrine Falcons in this canyon, as it

lies rather close to a major population

center. However, Dark Canyon and the

surrounding area should be considered :

essential habitat for this species because

it contains the last historic nesting site

of Peregrine Falcons in the Black Hills.

--

bP

‘ SS . < ~

h

Ls

aE

J t

——

a?

yet?

—

>

\ 2a

\z7 23

rit

7T ¥

2 bee

i OG]

a

.

.

My (= L -

a“

». fe) woos a” A ken

“ | “ e .

TO: ~~

a : “+ "

ah,

ae

“15 ‘

v_ &%

re

ee Me

* |,

!

LENa=

; net 4

Menor

stlee 4 ive. or ae —

: ee. [e.

| pom hy, > % j 4 on od ec

- : “oe

2, lc ee Sle” 186

- ooe A = 7:

eed DE an { ¢ = 7

7 Li as * %, : 2 .

ll | Ly “ fs, ity e

a as A

7 az tea he a (i 2 \

. Zs i s #3, | + . o*= , a

e an? > + ‘ a

Pie Kone ny lt A)

BEST AVAILABLE COPY®

Advisory

Council On

Historic

Preservation

The Old Post Office Building

1100 Pennsylvania Avenue, NW, #809

Washington, DC 20004

July 25, 1988

Mr. Gary E. Gargill

Regional Forester

Rocky Mountain Region

U.S.D.A. Forest Service

11177 W. 8th Ave., Box 25127

Lakewood, CO 80225-0127

Attn: 1540(L)

Dear Mr. Cargill:

Thank you for your letter of June 30, which we

received on July 11, providing us with information on the

Van Etten land exchange on the Black Hills National Forest.

We have completed our review of the Forest

Service’s determination that this exchange would have "no

effect" on historic properties; as you know, this review was

conducted pursuant to 36 CFR §800.6(e), as the result of a

request by Mr. Bruce Ellison of Rapid City, South Dakota.

Our analysis of the Forest Service’s determination is

enclosed, including recommendations for Forest Service

action. Pursuant to 36 CFR §800.6(e)(2), you should

reconsider your finding of "no effect." Since this matter

pertains to the eligibility of a property for inclusion in the

National Register of Historic Places,, we have also referred

it to the Keeper of the Register, in accordance with 36 CFR

§800.6(e)(3). However, since there manifestly are

insufficient data to allow the Keeper to reach a conclusion

about eligibility, we do not believe that the Forest Service

should seek a formal determination at this time. Instead,

the Forest Service should carry out the additional

identification efforts recommended in our analysis, and on

the basis of these efforts comply as necded with 36 CFR

§800.4(c) et seq.

Sincerely,

Thomas F. King

Director, Office of Cultural

Resource Preservation

Enclosure

ANALYSIS

of BLACK HILLS NATIONAL FOREST’S

DETERMINATION OF "NO EFFECT"

FOR THE VAN ETTEN EXCHANGE

Prepared by T.F. King, Director

Office of Cultural Resource Preservation

Advisory Council on Historic Preservation

7/16-21/88

Introduction

The Black Hills National Forest has determined that

exchange of a 100 acre parcel of land under its jurisdiction

for a larger parcel presently in private ownership would have

"no effect" on historic properties. The exchange transaction

is referred to as the "Van Etten Exchange." Attorney Bruce

Ellison of Rapid City, South Dakota, representing clients

opposed to the exchange, has requested, pursuant to 36

CFR §800.6(e), that the Council review this determination.

The Rocky Mountain Regional Office of the Forest Service

has provided us with documents pertinent to the Forest’s

determination. What follows is our analysis of those

documents, to determine whether the Forest Service’s

determination was a correct one.

se

To avoid future questions on this point, it should be

noted at the outset that under the revised version of 36 CFR

Part 800 published for effect in late 1986, the Forest’s 7

determination would be procedurally incorrect on its face.

Since the determination was based on the perceived absence

of historic properties’ within the parcel to be transferred

out of Federal ownership, the determination technically

should be one of "no properties” under 36 CFR §800.4(d),

rather than one of "no effect" under 36 CFR §800.5(b).

There is little substantive difference between these two kinds

of determinations, however, and in any event, the

determination was made in 1984, when the Council’s 1979

regulations were in effect; these regulations were much less

clear than the 1986 regulations are about the distinction

between "no properties” and "no effect." It should also be

noted that technically, the Forest does not seem to have

actually made the determination; the State Historic

' That is, properties eligible for inclusion in the

National Register of Historic Places. See 16 U.S.C> 470W).

7

Preservation Officer (SHPO) did, in his letter of September

13, 1984. This was technically incorrect under the 1979

regulations, as it is under the 1986 regulations, but since the

determination seems to have been adopted by the Forest as

its own, this seems to us to have no substantive importance

to the present analysis, though the Forest Service should be

careful in the future to ensure that its procedures for

determining effect comport with the regulations.

Issues

Since the Forest’s determination, in substance, was

that the 100 acre parcel to be transferred out of Federal

control contained no historic properties, the correctness of

the Forest’s determination turns on the question of whether

the Forest carried out an appropriate effort to identify such

properties. Two issues must be addressed in attempting to

answer this question:

Was the Forest’s approach to the alleged traditional

religious significance of the parcel appropriate?

Mr. Ellison’s clients and American Indians Against

Desecration (AIAD) have alleged that the parcel has

significance in the traditional religious beliefs and/or

practices of the spiritual leaders of the Lakota Nation (See

Hammil affidavit, p. 1). The Forest Service argues that

under the criteria of eligibility for the National Register of

Historic Places (36 CFR §60.4), "properties used for

religious purposes shall not be considered eligible for the

National Register unless primary significance is derived from

architectural or artistic distinction or historical importance,"

and that is "cultural resource” survey of the parcel revealed

no properties with such importance (See Regional Forester’s

Responsive Statement, pp. 8, 10). The Service goes on to

argue that its further efforts to consult with traditional

leaders of the Lakota and other American Indian groups in

the area were adequate to determine the religious

significance of the parcel, whatever statutory base there

wt.

might be for doing so (See Regional Forester’s Responsive

Statement, pp. 9-10).

Was the Foresi’s effort to identify historic properties in

general adequate and appropriate?

This question in part subsumes the previous one; if

the Forest Service is wrong in its assumptions about

traditional religious properties and its efforts to address

them, then its overall effort to identify historic properties

would clearly be flawed. Additional questions have been

raised by Mr. Ellison’s clients about the adequacy of the

Forest’s identification effort, however, and they have alleged

the presence of a cave and a quarry of possible historical

significance, neither of which was identified in the "cultural

resources" survey report prepared for the Forest by it

contractor, Overland Associates (Overland Associates 1984).

We will address each of these questions in turn.

Was the Forest’s approach to the alleged traditional

religious significance of the parcel appropriate?

This question has two parts: First, is the Forest

Service correct in its interpr.:tation of the National Register

Criteria? If the Forest Service is correct, then under Section

106 of the National Historic Preservation Act and 36 CFR

Part 800, it has no responsibilities regarding traditional

religious properties, and for our purposes, the second part of

the question need not be addressed. If the Forest Service is

incorrect, then the second part of the question is: Were the

efforts undertaken by the Forest Service adequate to identify

and evaluate traditional religious properties?

Interpretation of the National Register Criteria

The Forest Service relies on four documents as bases

for its conclusion that under the National Register Criteria

properties "used for religious purposed” are not eligible.

The first document is 36 CFR §60.4, which presents

the Criteria themselves. According to the Forest Service,

~

"(t)his section of the regulations specifically states that

properties used for religious purposes shall not be

considered eligible for the National Register unless primary

significance is derived from architectural ar artistic

distinction or historical importance" (Regional Forester’s

Responsive Statement p.8).

The Forest Service’s reference is to the "Criteria

Considerations" included as an unnumbered subsection of 36

CFR §60.4, which state in part that:

"(o)rdinarily...properties owned by religious

institutions or used for religious purposes...shall not

be considered eligible for the National Register.

However, such properties will qualify...if they fall

within the following categories:

(a) A religious property deriving primary

significance from architectural or artistic

distinction or historical importance..."

National Register Bulletin 15 (National Park Service: issued

6/1/82) discusses how this criteria consideration is to be

x

applied. It notes that "(a) religious property may be

eligible...for its significance in the history of religion if that

significance has scholarly secular recognition..." (p. 46), "for

association with an individual important in religious history,

if that significance has scholarly, secular recognition..." (p.

47), or for its ability to "yield important information about

the prehistoric or historic religious practices of a cultural

group" (p. 48). It also directs that "(a) religious

property...should be evaluated...specifically in comparison to

other properties of its type, period, method of construction,

and so on" (pp. 47-48).

The Forest Service’s interpretation that under 36

CFR §60.4 a property "shall not be considered eligible for

the National Register” if it is used for religious purposes" is

not quite consistent with the actual language of the

regulation; 36 CFR §60.4 says that a property used for

religious purposes ordinarily shall not be considered eligible,

and National Register Bulletin 15 goes on to discuss in some

detail the circumstances under which such a property can be

considered eligible. The critical considerations in 36 CFR

§60.4 provide a basis for critical evaluation of properties

used for religious purposes, but they do not provide a basis

for rejecting the eligibility of such properties out of hand.

It should be noted that quite a number of properties

used by Native American groups for religious purposes have

been included in, or determined eligible for, the Register;

notable among these are the Helkau Historic District on the

Six Rivers National Forest in California (site of the famous

"GO-Road"” case), Kootenai Falls in Montana, Tahquitz

Canyon in southern California, and Kaho’oiawe Island in

Hawaii.

The second document relied on by the Forest Service

to support its interpretation of 36 CFR §60.4 is the letter of

May 2, 1986 from the South Dakota SHPO to the Forest

Supervisor, which states the SHPO’s "understanding...that

religious sites are not eligible for listing on the National

Register unless they are also significant under other criteria.”

This can only be interpreted as a gloss on the criteria

consideration discussed above, but it is even less consistent

with the actual language of the regulation, and with the

Register’s interpretation of that language, than is the Forest

Service’s representation. The "religious property" criteria

consideration cannot legitimately be construed in the way

the SHPO apparently construes it--to require that if a

property is used for religious purposes, it cannot be included

in the Register unless it is significant for some reason having

nothing whatever to do with its religious use.

The other two documents on which the Forest

Service relies for its interpretation of the National Register

Criteria are both letters commenting on the Council’s 1985

draft "Guidelines for Consideration of Traditional Cultural

Values in Historic Preservation Review." To address these

documents sensibly it is first necessary to discuss the

purpose for which the Guidelines were drafted, and their

subsequent history.

In the early 1980s, the Council had begun to become

involved in review of a number of Federal undertaking

- 10 -

having effects on what we now call "traditional cultural

properties"--that is, properties whose historical significance is

derived from the roles they have played, and may continue

to play, in the traditional lifeways of a community. Among

these lifeways are those carried out by Native American

groups that Euroamerican society defines as "religious," and

one of the problems the Council found itself facing was a

tendency by agencies and SHPQs to use the "religious

property” criteria consideration in the National Register

Criteria to exclude from consideration under Section 106

properties that played important roles in such lifeways._ This

was--and is--a matter of serious concern to us; we felt--and

feel--that this practice can amount to discrimination against

Native American groups on religious and racial grounds. It

should be recalled that the "religious property" criteria

consideration permits the inclusion of religious properties if

their "primary significance is derived from architectural or

artistic distinction or historical importance" (emphasis

added). Many Native American groups do not distinguish

. S

"religion" from the rest of culture, or vice-versa, as does

Euroamerican society. In many American Indian languages,

in fact, there is no word for "religion." As a result, religious

history, including the "myths" upon which religious practices

are often based, is often if not usually integral to the culture

history of a Native American group. If properties reflective

of those aspects of Native American culture that

Euroamerican scholars and administrators define as

"religious" are excluded from consideration for inclusion in

the National Register, and hence from consideration under

Section 106 and other protective authorities,then much of

the history of Native America, as perceived by Native

Americans, is denied, and the properties reflective of that

history are denied protection equal to that afforded

properties of significance in the history of Euroamerican

society.

In our experience, the Forest Service is particularly

prone to questionable interpretations of the "religious

property” criteria consideration. The most famous case of

this kind involved the San Francisco Peaks in Arizona, a

property of deep cultural/religious significance to the Navajo

and Hopi. The Forest Service, applying the National

Register criteria considerations with the concurrence of the

SHPO, determined that the Peaks were not eligible for the

Register. Despite a court challenge to this determination

and advice from both the Register and the Council that the

question of eligibility should be referred to the Keeper of

the National Register for a final determination, the Forest

Service maintained its position. Other cases involving

similar interpretations included the "GO-Road" case on the

Six Rivers National Forest in California (where the property

involved was eventually determined eligible for the Register

and addressed under Section 106) and a still unresolved set

of conflicts between Forest Service activities and Karuk

Indian "World Renewal" ceremonial sites along the Klamath

River in California.

To address these problems, and others less

specifically associated with "religious" matters, we set about

i

to develop the referenced guidelines. The guidelines were

distributed in draft to Federal agencies, SHPOs, Indian

tribes, and other interested parties. A fairly large number of

comments were received; the majority were positive, though

many recommended specific changes. The two documents

relied upon by the Forest Service in this case were among

the most negative. Based on review of the comments, the

Guidelines were extensively edited, but release of a final

version has been delayed for reasons to be discussed below.

Of the two comment letters relied upon by the

Forest Service, one is of marginal relevance at best. The

letter of October 24, 1985 to then-Exccutive Director Garvey

from the Director of the Bureau of Land Management

merely expresses the BLM’s position on the guidelines. This

letter, and its extensive attachment, have been taken into

account in our redrafting of the guidelines. However, since

BLM is responsible for neither the National Register nor

—

oversight of the Section 106 process, there is no reason to

give its views any more weight than one would give the views

-14-

of any other agency--for example, those of the Forest

Service.

The letter of August 16, 1985 from the Assistant

Secretary of the Interior for Fish and Wildlife and Parks to

then-Chairman Baker is more relevant, since the Assistant

Secretary oversees the National Park Service, which

maintains the National Register. Addressing this letter

requires us to discuss the further history of “cultural values"

guidelines.

We were surprised to receive the August 16 letter,

particularly because it appeared to deny the

recommendations contained in the then-recently published

Cultural Conservation report’, prepared by the Department

of the Interior and the American Folklife Center pursuant

to Section 502 of the National Historic Preservation Act

Published by the Library of Congress, American Folklife

Center, 1983. The report addresses the protection of

"intangible" aspects of culture as part of the overall national

historic preservation program. Such aspects include a wide

range of traditional cultural practices and beliefs, such as

those of Native American groups that may be categorized as

"religious."

-15-

amendments of 1980. We had relied on these

recommendations in preparing the guidelines’, and had

assumed that we were in step with Interior in doing so, since

when he transmitted the Cultural Conservation report to the

President and Congress, Secretary Watt directed the

National Park Service to undertake actions to implement its

recommendations. Thus it came as a surprise to us when

Assistant Secretary Horn effectively took the sinslibii that

these recommendations should not be attended to until

Congress took action on its own. The thrust of the

Secretary’s direction to the Park Service, and his advice to

the President and Congress, had been to seek administrative

means of carrying out the report’s recommendations in lieu

of new legislation‘. It therefore seemed a bit disingenuous,

Especially a recommendation to include folklife and

related traditional lifeways among the resources considered

by Federal agencies in their planning activities.

‘Letter of June 1(? - date obscured on our copy), 1983,

from Secretary James Watt to the President; copy indicates

similar letters sent to President of the Senate and Speaker

of the House. Letter says: "new legislation is not needed,"

but recommends, among other actions, that State and

- 16 -

at best, for Assistant Secretary Horn to oppose the issuance

of administrative guidelines because of a lack of legislative

action. The Department of the Interior’s representative on

the Council at the time, however, Mr. Dale Lanzone, was

successful in prevailing upon Chairman Baker to direct that

the guidelines, for all practical purposes, be suppressed.

A few months after work on the guidelines had

effectively ceased, both because of the Chairman’s

opposition to them and because of the press of other work,

Mr. Lanzone requested a meeting with me to discuss the

guidelines. At the meeting, he showed me a rough

beginning draft of guidelines to be issued by the Department

of the Interior to deal with traditional cultural properties.

The draft was very similar to portions of our guidelines. Mr.

Lanzone indicated that the Department was not in fact

opposed to the issuance of such guidelines, but only felt,

since they dealt substantially with matters pertaining to the

Federal agencies be encouraged "to identify and document

intangible cultural resource concerns."

‘i .

eligibility of properties for inclusion in the National

Register, that they should be issued by the National Park

Service rather than by the Council. He asked that we work

together in development of guidelines to be issued by the

Park Service, and I agreed.

Mr. Lanzone subsequently worked on the guidelines

with staff of the Park Service’s Interagency Resources

Division, in which the National Register is housed. Upon

his departure to new employment with the General Service’s

Administration, the project lapsed for several months, but in

the last several months it has been revived on the initiative

of the National Register staff, and within a matter of days

the National Register will be distributing for public

comment a draft of National Register Bulletin 38, entitled

Traditional Cultural Properties: Guidelines for Evaluation.

Bulletin 38, in whose preparation I have personally

participated, represents the culmination of Mr. Lanzone’s

initiative. It is my expectation that once it has been

finalized, we will return to development of Council guidance

« 386

focussing on the consideration of traditional cultural

properties in planning, as opposed to their identification and

evaluation.

The purpose of this admittedly lengthy digression has

been to show that the August 16, 1985 letter relied upon by

the Forest Service did not reflect a fundamental difference

of opinion between the National Register and the Council

over how traditional cultural properties should be addressed;

it merely reflected Interior’s distaste for having the Council

issue guidelines pertaining to its bailiwick--a distaste that has

been alleviated through subsequent cooperative efforts by

the Park Service and Council staff.

In conclusion: of the four documents relied upon by

the Forest Service to support its interpretation of the

National Register Criteria, two (the Service’s interpretation

as set forth in the Regional Director’s responsive statement

and the letter from the SHPO) represent glosses of the

"religious property" criteria consideration that are not

consistent with the National Register’s own interpretation of

-19-

this consideration; one (the BLM letter) is simply a

statement of opinion by another Federal land management

agency; and one (the Horn letter of August 16, 1985) is an

outdated expression of concern about what was perceived to

be an inappropriate extension by the Council into the

National Register’s functions--a concern that did not affect

how the National Register Criteria should be interpreted,

and that in any event has since been resolved.

In applying the "religious properties" criteria

consideration to properties used by Native American groups

for traditional religious purposes, one has to balarice

carefully the need to avoid actions that would smack of the

Constitutionally prohibited establishment of religion (the

underlying reason for the "religious exclusion") and the need

to avoid discriminating against a Native American group on

religious or racial grounds. There is no evidence that in

applying the criteria consideration in the Van Etten

Exchange case, the Forest Service undertook any such

careful balancing.

~.

The Forest Service’s efforts to identify traditional cultural

properties

Although the Forest Service appears to have erred in

assuming that the putative traditional religious significance

of the 100 acre parcel in: »lved in the Van Etten Exchange

should not be considered as a possible basis for National

Register eligibility, the Service did take certain steps to

ascertain what the religious significance of the parcel might

be. The question is, were those steps adequate to determine

its significance?

The first thing the Forest Service did to address

possible historic properties on the 100 acre parcel was to

contract for a survey by Overland Associates of Boulder,

Colorado. Overland’s report of its survey, submitted in

April of 1984, will be discussed in greater detail later. For

the moment, it will suffice to note that:

° There is no evidence that Overland

interviewed anyone who might have known

about, or been concerned about, the

oe

traditional cultural/religious significance of

the parcel; and

° There is no evidence that Overland

conducted any ethnographic study relative to

the parcel, or i reviewed the ethnographic

literature in more than a cursory, general

fashion. Such data as they do present

regarding traditional use of the area (cf. pp.

3-19, 3-20) is very general in nature, relating

to the Black Hills as a whole.

Without study of the literature pertinent to

traditional use of the area, and without talking to the people

who might ascribe cu!tural/religious significance to it, or

know about the ascription of such significance, it is obviously

impossible to determine whether the area has such

significance; traditional cultural properties do not announce

themselves as such to the visitor. The Overland study was

clearly insufficient as a basis for assessing the parcel’s

traditional significance.

x. 2

When the significance of the 100 acre parcel became

an issue, the Regional Archeologist inspected the parcel (on

September 24, 1985 according to the memorandum of March

28, 1986 from the Regional Office to the Chief). There is

no evidence, however, that the Regional Archeologist talked

with anyone who might ascribe traditional cultural

significance to the parcel, or know about such ascription,

and there is no indication that the Regional Archeologist

conducted any ethnographic research. Accordingly, his

inspection only duplicated the efforts of Overland

Associates, and not surprisingly supported Overland’s

conclusion.

On December 10-11, 1985, the Forest sponsored a

conference with Native American spiritual leaders in Rapid

City. Based on this conference, the Forest Supervisor states

his opinion, in his memorandum of December 26, 1985 to

the Regional Forester, that "the consultation required in the

Van Etten land exchange appeal has been satisfactorily

completed." However, the conference was not organized to

_: =

address the 100 acre parcel involved in the exchange, or to

address any specific parcel. As the introductory remarks of

the Deputy Forest Supervisor make clear (pp. 2-6

transcript), the conference was construed to be a general,

introductory session aimed at establishing broad policy and

procedures for future coordination on specific issues’. The

tribal leaders, I believe, approached their participation in

this manner. Having attended the conference, I can state

with certainty that if anyone asked a question or made a

statement about the Van Etten Exchange parcel, I didn’t

hear it. Apparently the Forest Supervisor’s conclusion is

based on “informal discussions with several of the

conference participants," in which those participants did not

identify the 100 acre parcel as an important "shrine or site"

(Forest Supervisor’s 12/26 memo, p. 2). The "informal

discussions” are not documented in the transcript; we are

*The intent, conduct, and conclusions of the conference

are very adequately summarized in the undated, apparently

draft, "Report on Black Hills National Forest Consultation

with Indian Spiritual and Traditional Leaders" provided to

us by the Forest Service.

~

not told with whom they were conducted, other than

Charlotte Black Elk and David Spotted Horse, and we are

not told what sorts of questions were asked, or how they

were asked. Some of the Indian participants with whom I

spoke during, before, and after the conference were afraid

that the conference might be used against them, for

purposes for which it was not intended. The December 26

memorandum is clear evidence that their suspicions were

justified. Saying that the conference had satisfied the Forest

Service’s responsibilities regarding the Van Etten Exchange

is like saying that one has satisfied one’s Section 06

responsibilities on a specific case by attending a general

meeting of the Advisory Council; it is at best ridiculous, at

worst dishonest.

After the December conference, however, the Forest

Service did take additional actions to determine the

cultural/religious significance of the parcel involved in the

Van Etten Exchange. On February 21, 1986 the Forest =

Supervisor wrote to the Tribal Councils of the area, and to

the individuals who had organized themselves at the

December meeting as the "Black Hills Commission," to

inquire about the significance of the parcel. The "Black

Hills Commission" had specifically agreed to respond to

Forest Service inquiries on, and advise the Forest Service

about, matters of this kind. Although simply writing a letter

to people is seldom a very good way to elicit useful

information from Native Americans about traditional

cultural properties, in this case it was a logical follow-up to

the December meeting, and seems consistent with the

understandings reached at that meeting. The letter is an

excellent one; it is clear, concise, complete, respecttul, and

suggests specific, reasonable actions that might be taken to

address the significance of the property. .

Apparently there were only two responses to the

Forest Supervisor’s letter. One was from Mark Dewey

Soldier Wolf of the Northern Arapahoe Tribe. On March 3

and 4, 1986, Gene Singsaas and Lee Sutton of the Forest

met with Mr. Soldier Wolf and his daughter, and reviewed

- 26 -

the parcels involved in the Van Etten and other exchanges.

According to Sutton’s March 19, 1986 memorandum report

of this meeting, Mr. Soldier Wolf "said he was gathering the

information on the exchanges to take back to the tribal

elders who might respond back to us later.". The response

apparently took the form of an invitation to meet with

Northern Arapahoe business council members and elders;

the Forest’s Singsaas, Bob Adams, and Lance Rom took

part in this meeting, on April 2-3, 1986. Singsaas’

memorandum of April 17, 1986 provides a clear report of

this meeting. The meeting seems to have been cordial, and

productive in terms of general relations between the Forest

and the Tribe regarding cultural matters. With regard to

land exchanges, however, some communication failure seems

to have occurred. Discussing the outcome of a session with

6 men whom I take to be elders of the Tribe, as opposed to

members of the Business Council, Singsaas’ memo (p. 3)

says:

"The consensus of the group was that the

Business Council was the appropriate organization

to deal with proposed land exchanges in the Black

Hills. They did not want to be involved with them.

My personal belief is that they misunderstood the

implications of the land exchange or they would have

wanted to deal with the exchanges themselves. I

think they thought that we were talking about

exchanging National Forest lands for tribal lands in

Wyoming.”

The memo does not indicate that the elders had

anything to say about the Van Etten Exchange parcel.

Whether this indicates that the parcel held no significance

for them, or that they felt that discussing the exchange

would be an inappropriate intrusion into what they

(mistakenly) took to be the Business Council’s affairs,

cannot be determined from the documents.

The other response to the Forest Supervisor’s letter

was from Charlotte A. Black Elk of Manderson, South

ome

———

Dakota. There seems to be some controversy within the

Forest Service over whether Ms. Black Elk should be

regarded as a "traditional religious leader of the Lakota" (c.f.

Forest Supervisor’s memo to Regional Forester of April 14,

1986). Be this as it may, Ms. Black Elk is a member of the

"Black Hills Commission,” and as far as I know is highly

respected by the Lakota and other tribes in the area for her

concern about traditional cultural matters. Ms. Black Elk

wrote a lengthy letter to the Forest Supervisor on February

28, 1986. Regarding the Van Etten Exchange, she says:

"I conducted a personal walk-over survey of

the sites, and feel that the exchange should occur."

Ms. Black Elk specifies several reasons for her

conclusion. These are:

° "benefit in acreage to public land holdings;"

° “consolidation of public lands;" and

° "greater degree of land protection.”

These are all probably excellent reasons for

proceeding with the exchange, but they do not directly

|

address the question of the parcel’s traditional cultural

significance. I can easily imagine the Section 106 process

resulting in agreement that the exchange should proceed, for

precisely the reasons specified by Ms. Black Elk, whatever

the cultural significance of the parcel, but the fact remains

that the significance of the parcel needs to be defined. Ms.

Black Elk seems to be skipping this step and going on to

advise about ultimate management decisionmaking.

Ms. Black Elk goes on to say that:

"The site selected by Van Etten for exchange

has generated several very emotional telephone calls

to me from landowners/tenants surrounding the site.

There have been a wide range of comments from the

site being ’sacred burial grounds’ to allegations that

the site will be opened to massive, and

environmentally adverse, development. However, I

think it is necessary to rescind from issues of

personal emotion and view the proposed exchange

from the vantage point of an overall strategy for

- 30 -

public land holdings in the Black Hills National

Forest."

Two observations are relevant to this statement.

First, it again illustrates Ms. Black Elk’s desire to transcend

questions of the particular significance of specific sites and

participate in general land-use decisionmaking. This may be

a very appropriate thing for her and others to do, and in

fact may be more in keeping with traditional Lakota cultural

practice than is the identification and protection of specific

properties--after all, the Lakota tend to identify the Black

Hills as significant in their entirety. It might be very useful,

as a matter of programmatic coordination between the

Forest and the tribes, to explore ways that they could

participate in the manner evidently desired by Ms. Black

Elk, in lieu of arguing about specific sites. At the moment,

however, we are addressing the specific significance of a

particular parcel of land, and Ms. Black Elk’s beliefs about a

proper "overall strategy" are not informative about this issue.

i

The second observation, however, is that--based on

reading between the lines of Ms. Black Elk’s letter--one gets

the strong impression that she is not very impressed by the

allegations of the "landowners/tenants.” I assume that at

least some of these are Mr. Ellison’s clients. Ms. Black

Elk’s view of the parcel’s significance is suggested by her

enclosure of the words "sacred burial grounds” in quotation

marks, and is underscored by the following paragraph, which

seems to indicate that she suspects the "landowners/tenants"

of having ulterior motives for their allegations:

"I am particularly concerned that, because

many of the residents use the proposed selected site

as a personal park and private recreation area, that

the religion of the Lakota will be used to manipulate

and side-track the principle of consolidating areas.”

One can easily reach two rather different conclusions

from this statement. First, one can conclude that Ms. Black

Elk regards the parcel as having no cultural/religious

significance, and feels that Mr. Ellison’s clients are misusing

ee.

Lakota religion to preserve their access to a "personal park

and private recreation area.” Alternatively, one can

conclude that whether the area has cultural/religious

significance or not, Ms. Black Elk feels that the "principle of

consolidating areas” should take precedence. These

conclusions, of course, are not altogether mutually exclusive.

I tend to think that an accurate reading would be that Ms.

Black Elk isn’t personally aware that the parcel has any

specific traditional cultural/religious significance; that she is

suspicious of the motives of Mr. Ellison’s clients; and that

she believes that it is in the public interest to proceed with

the exchange, based on her beliefs about proper land-use

principles.

In conclusion: the Forest Service’s efforts to

determine the traditional cultural significance of the 100

acre parcel involved in the Van Etten Exchange have yielded

rather muddled results. The Forest Supervisor’s effort to

misuse the December 10/11, 1985 conference results was

reprehensible, and if those subsequently consulted were

« Zea

aware of it, may have gotten the whole effort off on the

wrong foot. The Forest Service did make what seems to

have been a good-faith effort to consult with members of

the "Black Hills Commission," but got little response. This

may reflect little knowledge of or concern about the

cultural/religious value of the parcel on the part of the

Commission members, but on the other hand it may reflect

the fact that the Commission was newly organized and

uncertain about procedures. It may also reflect suspicion on

the part of Commission members that whatever they said

might be misused--a suspicion that would have been

enhanced by any knowledge they may have had of the Forest

Supervisor’s misconstruction of the results of the December

10-11, 1985 conference. Of the two responses received,

neither indicated that the parcel proposed for exchange had

special cultural/religious value. However, one of the

responses--that of Mark Dewey Soldier Wolf and the

Northern Arapahoe elders--seems to have reflected

confusion about what was being addressed, while the other--

: e

that of Charlotte Black Elk--seems to have reflected greater

concern for overall land use principles than for the specific

significance of the property involved. While neither

response indicates that the parcel has specific

cultural/religious significance, neither unambiguously

indicates that it does not. It may be too much to expect an

unambiguous result from consultation with traditional

spiritual leaders of a Native American group, particularly in

the emotionally charged atmosphere that surrounds Forest

Service management of and tribal beliefs about the Black

Hills, but the fact remains that at this point this reviewer, at

least, is left without a significant clue about whether the

claims of Mr. Ellison’s clients have any merit. Although the

Forest Service has made a real effort to address this

question, through its consultation with the Black Hills

Commission, it appears that more effort is needed to

overcome (a) the uncertainty resulting simply from the

newness of the Commission, and (b) the likely effects of the

~ =

Forest’s efforts to misuse the results of the conference at

which the Commission came into being.

Was the Forest’s effort to identify historic properties in

general adequate and appropriate?

The adequacy and appropriateness of the Forest’s

overall effort to identify historic properties of all kinds can

be addressed only with reference to the April, 1984 report of

its archeological contractor, Overland Associates, since this

is the only document that describes the effort in detail. As

noted above, the Regional Archeologist subsequently

examined the parcel, but there is no documentation as to

what was involved in this examination.

The Overland report, entitied Cultural Resources

Inventory of the Van Etten Exchange, is a remarkable

document. Only the first and last two pages of text (pages

1-1, 1-2, 5-1, and 6-1) appear to be specific to the parcel

inspected; all the rest--eight pages on the "area and

environment,” twenty-three pages on "cultural overview,” and

a.

Tiicietareniiaieiias /

fourteen pages on "research orientation and project

methodology" are general in nature, addressing the Black

Hills overall and/or what appears to be standard Overland

field methodology. It is very probable that the bulk of the

report is maintained as a standard set of files in Overland’s

word processor and punched into every report Overland

prepares on the Black Hills. This creates some startling

discontinuities. On page 4-11, for example, one reads that

inventory and site record forms "are completed at each

prehistoric and historic site found;" on page 5-1, however, it

is reported that "no sites were encountered during the

present survey." A lengthy discussion of "collection policy” is

provided on pages 4-12/13, but apparently nothing was found

that might have been collected. More significantly, we are

never really told anything about the parcel inspected, about

specific observations made while there, about any particular

difficulties encountered during survey, or about specific

results. If it were not for the photographs appended to the

report, there would be little evidence that the authors had

«ot.

even visited the parcel. In short, the report is mostly

padding.

The report’s great lack of specificity is particularly

germane to the claims of Mr. Ellison’s clients that there are

an important cave and a quarry on the parcel. There is no

evidence that Overland undertook any specific review of the

parcel’s geology, which might have revealed likely cave sites.

Nor is there any evidence that Overland reviewed the history

of the parcel and its vicinity themselves, which might have

provided evidence for the existence or nonexistence of the

quarry. The sources cited in the "cultural overview" section

are all very general in nature, and there is no indication that

local histories, newspaper records, historical society archives,

atlases, or other standard sources of historical information

were consulted. The text is internally inconsistent about

what sources of information actually were checked; on pages

4-10 and 4-11, in o: ¢ of the general, apparently "canned"

sections, we are told that a number of sources (not including

local historical sources, ethnographies, etc.) were reviewed,

2

but in the apparently de novo Section 5-1 only two sources

are listed: the records of the Archeological Research Center

at Fort Meade and the "Cultural Atlas" of the Black Hills

National Forest itself--in other words, the basic archeological

site inventories maintained by the SHPO and the Forest

Service. These sources, we are told, revealed only that no

surveys had been conducted in the area, and no

archeological sites found.

The report is entirely archeological in its orientation;

on page 4-1, for example, the significance of historic

properties (referred to as "cultural resources") is discussed

solely in terms of significance in archeological research.

Perhaps it is because of this bias that, as noted above, there

is no evidence that anyone with knowledge of or interest in

the putative traditional cultural value of the parcel was

contacted or interviewed, that the ethnographic literature

was reviewed in more than the most cursory way, and that

the history of the area seems to have been slighted. The

authors’ at best vague familiarity with what in theory they

30.

were contracted to identify is further elucidated by section

4.2 on pages 4-5 through 4-8, where a set of "National

Register Criteria," wholly archeological in nature, are set

forth, in apparent ignorance of the actual Criteria published

at 36 CFR §60.4.

It is also notable that no subsurface testing was

carried out as part of the survey (cf. p. 4-11), despite the

fact that surface visibility conditions were characterized as

"poor to fair." In a letter dated January 16, 1986 to the

Forest Service’s Paul Zimmerman, Overland’s Jeff Campbell

explains various steps that were taken to compensate for

poor surface visibility. These do not appear unreasonable,

and might in fact make subsurface testing unnecessary

depending on local circumstances, but is difficult to imagine

why, according to Campbell, such steps "are not generally

made explicit in reports" (p. 2). Moreover, the report is not

simply inexplicit about these steps, it seems to contradict

Campbell’s description of them; on page 4-10, we are told

that "an alternative plan was adopted which concentrated

- 40 -

survey on the high potential and high visibility areas..."

Again, however, we are given no parcel-specific data about

which areas were inspected in detail or which areas were

perceived to have "high potential." One’s uncertainty about

the applicability of the methodologicai description to the

actual parcel under consideration is heightened by the fact

that on the same page, the area is referred to as a "timber

sale" (p. 4-10, line 4).

Finally, the report’s focus solely on lands within the

boundaries of the 100 acre parcel proposed for exchange

may have been inappropriate. If private use and

development of the parcel may result in the kind of

environmental impacts that nearby landowners and tenants

fear according to Ms. Black Elk’s letter, then effects on

historic properties may occur outside the boundaries of the

parcel itself. For example, if the parcel is developed for

housing, one can easily imagine this stimulating the

excavation of nearby archeological sites (if any exist) by new

residents interested in artifact collecting. As specified in 36

~ét.

CFR §800.4(a), efforts to identify historic properties should

address an undertaking’s area of potential effects, which may

be larger (or smaller) than the project area per se.

Its narrow focus, the lack of evidence of background

research, the bias toward only one class of historic

properties, the inexplicit methodology employed, and its

internal contradictions make the adequacy of the Overland

Report dubious at best. It should not be relied upon as a

basis for decisionmaking about the presence or absence of

historic properties on the parcel or within the exchange’s

area of potential effects.

Conclusions and recommendations

Based on the information provided by both Mr.

Ellison and the Forest Service, we are unable to reach any

conclusions about whether historic properties are likely to

occur on the 100 acre parcel proposed for transfer out of

Federal ownership. Mr. Ellison’s clients insist that the

parcel has traditional cultural value, and that there are at

- 42.

meee

least a quarry and a cave on or near the parcel that may be

eligible for inclusion in the National Register for other

reasons. The Forest Service denies the first allegation, but

its efforts to investigate its basis have yielded ambiguous

results, and are flawed by poor methodology and apparent

bias. The Forest Service has indicated, in its letter of June

30 to us, that it will perform additional studies with respect

to the second allegation.

The Forest Service should cause additional study to

be carried out by an expert and unbiased third party to

address the allegation that the parcel has traditional cultural

significance. An excellent model for such a study is that

carried out for the Six Rivers National Forest in California

addressing the significance of the Helkau Historic District,

site of the famous "G-O Road" case.

The Forest Service should also ensure that the

additional study it intends to carry out addressing the claims

about the cave and quarry is consistent with pertinent

regulations and guidelines, such as 36 CFR §800.4(a), the

- 43 -

Secretary of the Interior’s Standards an Guidelines for

Identification, and National Register Bulletin 24:

"Guidelines for Local Surveys.” The deficiencies in the

Overland Report, discussed above, should be specifically

addressed and corrected.

The Forest Service should ensure that all studies

address the entire area of potential effects (36 CFR

§800.2(c)) of the proposed exchange. Depending on the

uses to which the 100 acre parcel may be put if the exchange

proceeds, this are may extend beyond the boundaries of the

parcel itself.

Finally, the Black Hills National Forest ts to be

commended on its efforts to develop an ongoing working

relationship with the tribes of the area, through the "Black

Hills Commission.” “It is unfortunate, however, that the

Forest Supervisor chose to misuse the results of the

conference at which the Commission was formed, as

discussed above. The Forest Service should undertake the

actions necessary to strengthen its relationship with the

- 44 -

Commission, to ensure that both the Forest and the

’

Commission members fully understand the Commission’s

above, it may be that the role apparently desired for the

Commission by Charlotte Black Elk--that of Participating in

land-use decisionmaking without assessing the specific

cultural significance Of particular Parcels--may be a more

fruitful role than that of assessing the significance of parcels.

It may be wise to explore this approach in detail with

commission members, but in any event, the Forest Service

Should ensure that both the Commission and its own

employees are clear in their minds about the Commission’s

functions and Operations.

- 45.