Ezekiel Rediker (pro hac vice) REED SMITH LLP 1301 K St. N.W. Washington, DC Tel. No. (202)

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1 Case :0-cv-00-KJM-KJN Document Filed 0// Page of 0 Ezekiel Rediker (pro hac vice) 0 K St. N.W. Washington, DC 00 Tel. No. () -0 erediker@reedsmith.com Attorney for the Winnemem Wintu Tribe WINNEMEM WINTU TRIBE, in their tribal and individual capacities; CALEEN SISK, et al., v. Plaintiffs, UNITED STATES FOREST SERVICE, Defendant. IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Case No. :0-cv-00 KJM KJN PLAINTIFFS REPLY BRIEF IN SUPPORT OF REMEDIES FOR COONROD FLAT Date: June, Place: Courtroom, th Floor 0 I Street, Sacramento Judge: Hon. Kimberly J. Mueller

2 Case :0-cv-00-KJM-KJN Document Filed 0// Page of TABLE OF CONTENTS Page I. INTRODUCTION... II. ARGUMENT... A. This Court should issue an injunction against the 0 Permit to protect the ceremonial portion of Coonrod Flat damaged by grazing... B. APA Sections 0() and 0() are not mutually exclusive and do not prevent this Court from issuing injunctive relief... C. This Court properly decided that the WWT is a consulting party under the NHPA and this issue should not be re-litigated in supplemental briefing about remedies... III. CONCLUSION i

3 Case :0-cv-00-KJM-KJN Document Filed 0// Page of 0 Cases TABLE OF AUTHORITIES Page(s) Alaska Ctr. for Env t v. Browner, F.d (th Cir. )... Alliance to Save Mattaponi v. United States Army Corps of Engineers, F. Supp. d (D.D.C. 0)... Apache Survival Coalition v. United States, F.d (th Cir. )... Attakai v. United States, F. Supp. (D. Ariz. 0)..., Colorado Indian Tribes v. Marsh, 0 F. Supp. (C.D. Cal. )..., Comanche Nation v. United States, 0 WL (W.D. Ok., Sept., 0)..., Envtl. Def. Ctr. v. Babbit, F.d (th Cir. )... Forest Guardians v. Babbit, F.d (0th Cir. )... Karuk Tribe v. Kelley, WL (N.D. Cal. June, )... Monsanto Co. v. Geertson Seed Farms, U.S. (0)... Montana Wilderness Ass n v. Fry, 0 F. Supp. d (D. Mont. 0)... Muckleshoot Indian Tribe v. United States Forest Service, F.d (th Cir. )... N. Cheyenne Tribe v. Norton, 0 F.d (th Cir. 0)... Natural Res. Def. Council v. Southwest Marine, F.d (th Cir. 0)... Norton Const. Co. v. United States Army Corps of Engineers, 0 U.S. Dist. LEXIS (N.D. Ohio Dec., 0) ii

4 Case :0-cv-00-KJM-KJN Document Filed 0// Page of 0 Pacific Rivers Council v. Thomas, 0 F.d 00 (th Cir. )... Quechan Tribe of Fort Yuma Indian Reservation v. United States Dep t of Interior, F. Supp. d 0 (S.D. Cal. 0)... Sacks v. Office of Foreign Assets Control, F.d (th Cir. 0)... Stone Man v. Green, Ga. 0 (Ga. )... Tinoqui Chalola Council of Kitanemuk and Yowlumne Tejon Indians v. U.S. Dep t of Energy, F.d 00 (th Cir. 00)... United States v. Monsanto, U.S. 00 ()... Statutes U.S.C. 0()...,,, U.S.C. 0()...,,, Regulations C.F.R C.F.R ,, C.F.R , C.F.R , - - iii

5 Case :0-cv-00-KJM-KJN Document Filed 0// Page of 0 I. INTRODUCTION This Court has the authority and good reason to order a new Section 0 evaluation and enjoin the 0 Coonrod Flat grazing permit, in part or in whole. In its brief dated May,, the United States Forest Service ( Forest Service ) argued that the Court should not enjoin the permit because the Winnemem Wintu Tribe ( WWT or Tribe ) has failed to prove that such relief is warranted and the Court cannot compel the Forest Service to consult with plaintiffs under Section 0() of the Administrative Procedure Act ( APA ). Yet this Court has discretion under the APA and National Historic Preservation Act ( NHPA ) to enjoin the 0 grazing permit issued to Wesley Truax ( 0 Permit ) in a manner that would not be harmful to any party. The WWT seeks a narrowly-tailored, partial injunction to restrict cattle from grazing on the spiritually significant portion of Coonrod Flat, approximately 0 acres within the 0,000 acre Bartle Allotment. The Tribe satisfies the standards for a permanent injunction because of the irreparable and ongoing harm caused by cattle grazing at the site. This Court is not limited in its injunctive powers by the APA, since Sections 0() and 0() are not mutually exclusive. This Court has already recognized the deficiencies in the Forest Service s Section 0 evaluation of Coonrod Flat and justifiably designated the WWT as a consulting party under the NHPA. The WWT asks this Court to stop the ongoing degradation of Coonrod Flat by requiring a new Section 0 evaluation and granting injunctive relief to preserve the sacred site from cattle damage. II. ARGUMENT A. This Court should issue an injunction against the 0 Permit to protect the ceremonial portion of Coonrod Flat damaged by grazing This Court should issue a permanent injunction against the 0 Permit to restrict grazing on the small portion of Coonrod Flat that holds strong spiritual significance for the WWT. Coonrod Flat comprises a total of acres within the 0,000 acres of the Bartle Allotment. The WWT uses approximately 0 of these acres for important ceremonies throughout the year. The Forest - -

6 Case :0-cv-00-KJM-KJN Document Filed 0// Page of 0 Service has been well aware of the particular importance of Coonrod Flat to the WWT for decades and has previously shown a willingness to grant the site special recognition. The Forest Service has taken measures to protect the site as a Traditional Cultural Property ( TCP ). Coonrod Flat is currently eligible for the National Register of Historic Places. This Court has ample authority to halt the gradual destruction of Coonrod Flat by partially or completely enjoining the 0 Permit. Courts have broad latitude in fashioning equitable relief when necessary to remedy an established wrong, Natural Res. Def. Council v. Southwest Marine, Inc., F.d, (th Cir. 00) (quotation omitted), and may issue partial injunctions when the equities demand. N. Cheyenne Tribe v. Norton, 0 F.d, (th Cir. 0) (affirming the district court s grant of a partial injunction). See also Pacific Rivers Council v. Thomas, 0 F.d 00 (th Cir. ) (affirming the district court s grant of a partial injunction); Stone Man v. Green, Ga. 0 (Ga. ) (affirming the district court s grant of a partial injunction, allowing defendant to continue operating a quarry, but imposing restrictions and conditions on the operation). The WWT has observed the degradation of Coonrod Flat with despair. As a result of the cattle damage to the site, the WWT satisfies the four-prong test required for an injunction: () that it has suffered an irreparable injury; () that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; () that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and () that the public interest would not be disserved by a permanent injunction. Monsanto Co. v. Geertson Seed Farms, U.S., - (0). Each of these requirements will be addressed in turn. First, without an injunction, the WWT will continue to be irreparably harmed by the Forest Service s actions. Cattle wander freely throughout the ceremonial area, leaving cowpies and tracks. AR - (Memo to Files). The cows have damaged and dislodged rocks from the Sacred Fire Circle. See Plaintiff s Supplemental Brief, Declaration of Mark Miyoshi, paras. -, and accompanying photos. The movement of the cattle has degraded Ash Creek and the riparian area around Ash Creek. Id. Ash Creek is one of the significant features of Coonrod Flat and is a necessary water source for the Tribe during its ceremonies. The cattle have broken down the bank of the Creek - -

7 Case :0-cv-00-KJM-KJN Document Filed 0// Page of 0 and polluted its water. Id. The widespread damage to the site rises to the level of irreparable harm required to warrant enjoining the 0 Permit. Second, monetary damages are inadequate to protect Coonrod Flat. Rather, protective action is needed. The site holds enormous spiritual significance for the WWT. It sits on the lower slopes of Mt. Shasta in a large, open dry meadow where the August Ceremony is conducted around the ceremonial fire ring with an open view of the mountain. The site encompasses a pre-historic village with house pits to the north. These pits run alongside glacier-fed Ash Creek, which winds its way through trees and foliage. Coonrod Flat is a sacred site that is worth far more than money to the members of the Tribe. The ceremonial site and its ancestral village represent the WWT s living historic culture of thousands of years on this land. The Tribe is striving to protect its ancestral lands so that future generations can continue its ancient cultural practices. Third, the equities tip in favor of granting the WWT an injunction. The WWT prefers a partial, permanent injunction to protect the ceremonial portion of Coonrod Flat. The Forest Service takes for granted that this Court has the injunctive power to protect specific parts of Coonrod Flat. The WWT is merely asking for the Forest Service to do what it has already agreed adopt specific protective measures for Coonrod Flat. The Forest Service has discussed fencing the site, and Mr. Truax has stated that he had no objection to such an action. AR 0. The Tribe sees little reason to prohibit grazing on the approximately 0,000 acre allotment comprised of both private and Forest Service land. The WWT is solely interested in protecting the 0 or so acres it uses for ceremonial activities, within the larger acre allotment comprising Coonrod Flat. The WWT prefers that the Court choose to protect the tiny fraction of the Bartle Allotment grazing permit that has religious significance for the WWT. Defendant s Supplemental Brief at ( Coonrod Flat represents only approximately 0.% of the Bartle Allotment, and the culturally significant portion of Coonrod Flat represents a tiny fraction only 0.0% of the total area covered by the Bartle Allotment permit. ). A partial, permanent injunction is a simple fix to a problem that the Forest Service blows out of proportion with its doomsday rhetoric. - -

8 Case :0-cv-00-KJM-KJN Document Filed 0// Page of 0 Although the WWT seeks a partial injunction and believes that this matter can be settled without impacting the interests of Mr. Truax, this Court may choose to enjoin the 0 Permit in its entirety. In such a case, the Forest Service is capable of renegotiating a permit with Mr. Truax that incorporates this Court s ruling. The Forest Service not the WWT made the deliberate choice to negotiate a permit that deals with such a large area of land. It is well within the Forest Service s powers to revise and reissue the permit; to claim otherwise is a fallacy. The WWT is not responsible for Mr. Truax s future purchases of cattle and the possibility that they would not have the knowledge of the range or the skill to migrate from the home ranch to and from the Bartle Allotment. Id. at. Although Mr. Truax has been grazing cattle on the Bartle Allotment since the 0s, the WWT has been using Coonrod Flat as a religious site since the 0s. Fourth, the public interest is served by an injunction. Many religious and cultural groups rely on historic sites to keep their traditions alive. The WWT keeps its traditions alive by holding ceremonies at Coonrod Flat. Native-American groups like the WWT make an important contribution to the cultural history of northern California. The federal government should seek to encourage traditional practices at sites like Coonrod Flat rather than inhibit them. If this court is not inclined to grant a permanent injunction, it may consider granting a preliminary injunction pending the Forest Service s completion of a comprehensive Section 0 evaluation. The Ninth Circuit has held that the standard for granting a preliminary injunction in the context of NHPA violations is more liberal than the standard for granting a permanent injunction. See Colorado Indian Tribes v. Marsh, 0 F. Supp., 0 & n. (C.D. Cal. ) (noting that the lenient standard for granting a preliminary injunction in the context of NEPA claims is also applicable to NHPA, since the rationale underlying the relaxation of the traditional standards for a preliminary injunction for NEPA violations would seem to have the same force and substance for NHPA violations ); see also Apache Survival Coalition v. United States, F.d, 0 (th Cir. ) ( [T]he same lenient standard for granting a preliminary injunction that is applied to NEPA claims should also be applied to challenges brought under NHPA. ). - -

9 Case :0-cv-00-KJM-KJN Document Filed 0// Page of 0 If a party can show likelihood of success on the merits, then irreparable damage may be implied. Colorado Indian Tribes, 0 F. Supp. at. Once a violation has been shown, an injunction should issue without detailed consideration of traditional equity principles. Id. This Court has already ruled in favor of the Tribe, holding that the Forest Service violated the NHPA when it failed to consult with the Tribe prior to granting the 0 Permit. As a result, likelihood of success on the merits has been established and irreparable damage may be implied, leaving only the question of whether or not this injunction should be granted in equity, which need not be considered in detail. Whether the equitable relief is permanent or preliminary, the Tribe seeks a narrowlytailored injunction of the 0 Permit that will restrict the movement of cattle and unauthorized use of Coonrod Flat. B. APA Sections 0() and 0() are not mutually exclusive and do not prevent this Court from issuing injunctive relief By failing to protect Coonrod Flat, the Forest Service violated the NHPA. Despite the Forest Service s protests, APA Sections 0() and 0() do not prevent this Court from enjoining the Forest Service s wrongful conduct. See e.g., Tinoqui-Chalola Council of Kitanemuk and Yowlumne Tejon Indians v. United States Dep t of Energy, F.d 00, 0 (th Cir. 00) ( [C]ourt[s] retai[n] broad discretion to fashion equitable remedies. ).Throughout this litigation, the WWT has repeatedly pled violations of the APA, including specific mentions of Section 0() violations in its Fourth Amended Complaint (FAC). See FAC, Page, paras -. The Forest Service is wrong to argue that this Court must specifically state which provision of the APA was violated, since these provisions are not mutually exclusive. These arguments detract from the issue of how to remedy the damage to Coonrod Flat and the WWT encourages this Court to be wary of such diversions. This Court has discretion to fashion an equitable remedy under APA 0(). Under this provision, a court may compel agency action unlawfully withheld or unreasonably delayed. A court may compel agency action by issuing an injunction. Forest Guardians v. Babbit, F.d, (0th Cir. ) (citing Envtl. Def. Ctr. v. Babbit, F.d (th Cir. )); Alaska Ctr. for Env t v. Browner, F.d,, (th Cir. ). Courts have issued - -

10 Case :0-cv-00-KJM-KJN Document Filed 0// Page 0 of 0 injunctions pursuant to Section 0() in order to compel compliance with the NHPA after determining that an agency has failed to complete a comprehensive Section 0 analysis. See Attakai v. U.S., F. Supp., (D. Ariz. 0) (granting plaintiff s request for an injunction after determining that defendants violated Section 0 of the NHPA); Quechan Tribe of Fort Yuma Indian Reservation v. United States Dep. of Interior, F. Supp. d 0, 0, (S.D. Cal. 0) (granting tribe s request for an injunction); Montana Wilderness Ass n v. Fry, 0 F. Supp. d, (D. Mont. 0) (granting an injunction after determining that the Bureau of Land Management violated Section 0). This Court likewise has the power to enjoin the 0 Permit to compel the Forest Service to perform a Section 0 evaluation and protect Coonrod Flat. This Court also has the authority to enjoin the 0 Permit under APA 0(). The Forest Service acknowledges the same in its supplemental brief. See Defendant s Supplemental Brief at. The Forest Service offers a specious argument that this Court does not have the power to enjoin the permit under Section 0()(A) because it made no finding that the Forest Service violated Section 0(). The WWT encourages this Court to be wary of these diversionary arguments. The preponderance of cases enjoining the federal government under the APA do not consider the difference between 0() and 0(). See e.g. Attakai v. U.S., F. Supp., 0 (D. Ariz. 0); Karuk Tribe v. Kelley, No. C 0-0 WHA, WL (N.D. Cal. June, ). Moreover, the WWT pled a violation of Section 0() in its FAC. FAC at, paras -. The fact remains that the Forest Service s violation of the NHPA are actions not in accordance with the law, resulting in violations of the APA. U.S.C. 0()(A). The Forest Service s conduct also renders its actions, findings and conclusions arbitrary and capricious, and an abuse of discretion in violation of Section 0()(A). It is immaterial whether the Forest Service violated Section 0(), 0(), or both, because these provisions are not mutually exclusive. Federal courts throughout the country have acknowledged that Section 0() and Section 0() violations are not mutually exclusive. Norton Const. Co. v. United States Army Corps of Engineers, No. :0-cv-0, 0 U.S. Dist. LEXIS, at * (N.D. Ohio Dec., 0). In fact, according to the plain terms of the - -

11 Case :0-cv-00-KJM-KJN Document Filed 0// Page of 0 APA, failures to act fall under the scope of both 0() and 0() because the APA defines agency action as, inter alia, a failure to act. Alliance to Save Mattaponi v. United States Army Corps of Engineers, F. Supp. d, 0 (D.D.C. 0) (quotation omitted). A remedy for a failure to act claim under Section 0() can be granted under Section 0() and Section 0(). This Court should compel the Forest Service to complete a Section 0 analysis and protect Coonrod Flat by enjoining the 0 grazing permit. C. This Court properly decided that the WWT is a consulting party under the NHPA and this issue should not be re-litigated in supplemental briefing about remedies This Court correctly found that the Forest Service failed to grant the WWT consulting party status under the NHPA. In so doing, the Court should not revisit its earlier ruling on consulting party status. The Forest Service failed to identify the WWT as a consulting party, despite the requirements of NHPA Sections 00. and 00.. Agencies must comply with the regulatory directive identified in C.F.R. 00.(a)() requiring them to identify and engage all consulting parties listed in Section 00.(c) including additional consulting parties under 00.(c)(). See C.F.R. 00.(a)() ( The agency official shall involve the consulting parties described in paragraph (c) of this section during the section 0 process ) (emphasis added). The use of the term shall makes clear that this is not a permissive process. See United States v. Monsanto, U.S. 00, 0 () (finding that Congress could not have chosen stronger language than shall to express mandatory intent); Sacks v. Office of Foreign Assets Control, F.d, (th Cir. 0) ( Congress s or an agency s use of the word shall indicates a mandatory duty that is not subject to discretion. ). The Forest Service refuses to acknowledge its obligations under C.F.R. 00.(f) to actively identify and invite to participate in the Section 0 process any parties entitled to be consulting parties. The burden was on the Forest Service to recognize the Tribe s long-standing traditional ties to Coonrod Flat and involve them accordingly. Instead, the Forest Service chose to ignore forty years of permits, consultation, and accommodations it had granted to WWT. See Comanche Nation v. United States, No. Civ-0--D, 0 WL, at * (W.D. Okla. Sept. - -

12 Case :0-cv-00-KJM-KJN Document Filed 0// Page of 0, 0) (finding defendants violated the NHPA and its implementing regulations by virtually ignor[ing] plaintiffs known concerns). The Forest Service attempts to shift its responsibilities onto the WWT by arguing that the the WWT would have needed to submit a written request under C.F.R. 00.(f)() to become a consulting party. Yet C.F.R. 00.(f)() only obliges agency officials to consider written requests of individuals and organizations seeking to participate as consulting parties that the Forest Service was not already obligated to involve. The Forest Service failed at the outset to identify and invite the Tribe to participate as an additional consulting party under C.F.R. 00.(c)(), as required by Section 00.(a)(). The Forest Service did not make reasonable efforts to identify and protect Coonrod Flat, a historic property. The Forest Service was required to make good faith efforts to [s]eek information from consulting parties, and other individuals and organizations likely to have knowledge of, or concerns with, historic properties in the area and identify issues relating to the undertaking s potential effects on historic properties. Comanche Nation, 0 WL, at * (citing C.F.R. 00.(a)()). The regulations repeatedly emphasize this obligation of the Forest Service to seek and engage consulting parties, which it neglected to do. See C.F.R. 00.()(a)() ( [T]he agency official shall seek information from consulting parties likely to have knowledge of, or concerns with, historic properties in the area ). The Forest Service s duties under C.F.R. 00 exist independently of whether the WWT is a federally-recognized tribe; those duties are the means by which the agency meets the goal of NHPA consultation: to identify historic properties potentially affected by the undertaking, assess its effects and seek ways to avoid, minimize or mitigate any adverse effects on historic properties. C.F.R. 00.(a). Furthermore, Ninth Circuit cases applying the NHPA have not yet addressed the definition of an Indian tribe for purposes of the Act; all relevant cases have involved plaintiff tribes with federal recognition. What is clear is that agencies are required to consult with appropriate persons to gather information concerning historic properties, even if those persons do not meet the See, e.g., Navajo Nation v. U.S. Forest Service, F.d 0 (th Cir. 0); San Carlos Apache Tribe v. United States, F.d 0 (th Cir. 0); Muckleshoot Indian Tribe v. U.S. Forest Service, F.d 00 (th Cir. ). - -

13 Case :0-cv-00-KJM-KJN Document Filed 0// Page of 0 C.F.R. 00. requirements for automatic consulting party status, as long as their input would advance the objectives of section 0. Attakai, F. Supp at 0. The Forest Service further obligated itself to consult with WWT by entering into a Programmatic Agreement ( PA ) with the California State Historic Preservation Officer ( SHPO ) and the Advisory Council on Historic Preservation ( ACHP ). The PA requires the Forest Service to consult with Native American tribes, organizations, and individuals, and other interested persons about preservation efforts. AR 0. In failing to do so, the Forest Service discounted the purpose of the PA to protect historical properties. AR. The language of the PA aligns with the NHPA and makes clear that groups like the WWT should be considered consulting parties. This alone should be enough to satisfy Section 00.(c)(). The Forest Service spends a large part of its supplemental brief arguing that the court should revisit its decision affording the WWT consulting party status. Yet this is not a motion for reconsideration. This Court ordered briefing on the issue of the appropriate remedy on claim three, including the effect of enjoining the Coonrod Flat permit. S.J. Order at. A round of supplemental briefing on remedies is not the time to re-adjudicate issues this Court already decided. As the Court properly recognized, the Forest Service ignored knowledge of WWT s sufficiently demonstrated and documented interest in Coonrod Flat and should have treated the WWT as a consulting party under the NHPA. S.J. Order at. III. CONCLUSION For the foregoing reasons, this Court should enjoin the 0 Permit and require the Forest Service to conduct a new Section 0 process for Coonrod Flat. The WWT respectfully requests that this Court grant injunctive relief to ensure that the Forest Service complies with the statutory and regulatory requirements of the NHPA and the APA. The WWT asks this Court to stop the unlawful damage to the Coonrod Flat site. - -

14 Case :0-cv-00-KJM-KJN Document Filed 0// Page of 0 DATED: June, Respectfully submitted, By: /s/ Ezekiel K. Rediker Ezekiel Rediker 0 K St., NW Suite 000-East Tower Washington, DC 00 Attorneys for Plaintiffs - 0 -