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Native
Americans for Enola v. United States Forest Service,
832 F. Supp. 297 (D. Or. 1993), vacated,
60 F.3d 645 (9th Cir. 1995). Case 131. Native Americans for Enola, the
Cascade Geographic Society, the Friends of Enola Hill, and Rip Lone
Wolf brought suit against the United States Forest Service challenging
issuance of a permit that allowed a logging company to use Forest
Service roads to haul logs felled on privately owned inholdings. Prior
to issuing the permit, the Forest Service had made a finding of
"no effect" and notified the Oregon State Historic
Preservation Officer (SHPO). The SHPO responded by asserting that the
Forest Service's determination did not meet SHPO standards because the
Forest Service failed to consider or survey project areas related to
road access. In response, the Forest Service maintained that it had
made a reasonable and good faith effort to identify properties in the
area of potential effects. Plaintiffs were not satisfied with the
Forest Service's actions, contending that the permit was issued
without providing the SHPO and the Advisory Council on Historic
Preservation an opportunity to comment and without considering and
documenting the effect on Enola Hill. The district court disagreed
with plaintiffs, finding that the Forest Service had considered
appropriate information regarding Enola Hill and issued the permit in
compliance with the requirements of Section 106. This was in spite of
the fact that the Council had advised the Forest Service that it
should submit the Enola Hill site to the Keeper of the National
Register of Historic Places for a determination of eligibility as a
traditional cultural property. [Ed. note: The Council ultimately sent
information on the question of eligibility to the Keeper.] In finding
that the Forest Service decision was not arbitrary and capricious and
accorded with procedures required by law, the district court observed
that the Forest Service searched diligently for historic properties in
the Enola Hill area by having specialists and cultural resource
technicians conduct several field inventories. The court noted that
significant inventories conducted in past years showed no physical
evidence of traditional cultural sites and, further, that the Forest
Service had also reviewed existing historical data and sought comments
from interested citizens. 832 F. Supp. at 300. Finally, the court was
apparently impressed by the fact that the Forest Service had assembled
a committee comprised of archeologists, an American Indian, a cultural
resource technician, and attorneys who found that no traditional
cultural properties existed in the area. Id.
In finding that the Forest Service had complied with Section 106, the
district court noted that the Forest Service had numerous
communications with the SHPO. A 1989 Memorandum of Agreement (MOA)
with the SHPO, in fact, only required the Forest Service to provide
data to the SHPO annually on areas surveyed if no cultural resources
were found. The district court thus determined that the Forest Service
had fulfilled the consultation requirement of 36 C.F.R. § 800.4(b).
Plaintiffs appealed the district court decision, but the Ninth Circuit
held that the action was moot.
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