United States District Court, E.D. California
order concerns only the court's prior decision to grant
plaintiffs' cross-motion for summary judgment regarding
the Coonrod Cultural Site. See ECF No. 147.
Construing a portion of defendant's filing as a motion to
reconsider, ECF Nos. 150, 158, and for the reasons stated
below, the court RECONSIDERS the question and now VACATES its
prior decision and GRANTS defendant's motion for summary
judgment regarding this claim. The court's decisions on
the parties' other claims remain unchanged by this order.
Winnemen Wintu Tribe (the Tribe) is not a federally
recognized Indian tribe, AR 469; 79 Fed. Reg. 4748-02 (Jan.
29, 2014), but it has a longstanding relationship with the
United States Forest Service (“USFS”) concerning
permits and project planning, see, e.g., AR 56, 818,
920. As of 2007, the Coonrod Historical Site is a National
Historic Place under the National Historic Preservation Act
(“NHPA”), 54 U.S.C. §§ 300101 et
seq. AR 336, 337, 930-944. Members of the Tribe
view the Coonrod site as a ceremonial area, AR 934, and have
held ceremonies there annually since the 1970s, AR 904, 922,
934. In 2003 the USFS issued a livestock and cattle grazing
permit to an individual named Wesley Truax, who is not a
party to this action. AR 908-916. At about the same time, the
Tribe sent a letter to the USFS complaining about
“desecration” to the Coonrod site by non-tribe
members. AR 904.
commenced this lawsuit against the USFS on April 19, 2009,
ECF No. 1, and in their fourth amended complaint, the
operative complaint in this case, they advance six separate
claims for relief, each claim involving alleged damages to a
different cultural site. ECF No. 121. Plaintiffs' third
claim for relief alleges the USFS violated the NHPA and the
Administrative Procedure Act (“APA”) by granting
the permits that allowed cattle to graze on the Coonrod site
without properly consulting the Tribe, as required by
regulations promulgated under the NHPA. Id.
¶¶ 62-66. The USFS filed a motion for summary
judgment, Def.'s Mot. for Summ. J. (“Def.'s
MSJ”), ECF No. 131, and plaintiffs filed an opposition
and cross-motion for summary judgment, Pls.' Cross-Mot.
for Summ. J. (“Pls.' MSJ”), ECF No. 133. The
court granted summary judgment in favor of defendant on all
claims except claim three, regarding the Coonrod Cultural
Site, which the court decided in favor of plaintiffs.
See Order at 21-23, ECF No. 147. In its order, the
court found the Tribe was a “consulting party” as
defined by the regulations promulgated under the NHPA, and
the USFS violated the NHPA and APA by not first consulting
with plaintiffs before issuing cattle grazing permits to a
third party for the Coonrod site. Id. In its order,
the court ordered briefing on the issue of the appropriate
remedy for the Coonrod site. Id. at 27-28.
parties submitted briefs on the appropriate remedy for the
Coonrod site. Although the USFS ultimately does address the
issue of remedies, it first argues the court erred in
granting plaintiffs consulting party status. Def.'s
Remedies Brief (“Def.'s Brief”), ECF No. 150.
As a result, the USFS argues, plaintiffs were not entitled to
consultation, and the court erroneously found the USFS
violated the NHPA and APA by not first consulting with
plaintiffs before issuing the cattle grazing permits.
Def.'s Brief at 4-6. The court ordered the parties to
show cause why it should not construe defendant's brief
as a motion for reconsideration, ECF No. 157, and the parties
responded, ECF Nos. 158, 159. In their response, plaintiffs
contend the court need not revisit its prior order because
the USFS merely restates arguments previously made and
rejected. Pls.' Response at 3, ECF No. 159. Having
considered the parties' responses, and for the reasons
stated below, the court elects to exercise its discretion and
consider defendant's threshold argument in its brief on
remedies as a motion for reconsideration. See Barber v.
State of Hawai'i, 42 F.3d 1185, 1198 (9th Cir. 1994)
(district courts have broad discretion under FRCP 60(b) to
Motion for Reconsideration
Federal Rule of Civil Procedure 60(b)(6), a party may seek
relief from a judgment or order for “any [ ] reason
that justifies relief.” The Ninth Circuit has stated
that Rule 60(b)(6) should be “liberally applied to
accomplish justice.” In re Int'l Fibercom,
Inc., 503 F.3d 933, 941 (9th Cir. 2007) (quotations
omitted). At the same time, “[j]udgments are not often
set aside under Rule 60(b)(6).” Latshaw v. Trainer
Wortham & Co., 452 F.3d 1097, 1103 (9th Cir. 2006).
Rather, this section should be applied “sparingly as an
equitable remedy to prevent manifest injustice, ”
Lal v. California, 610 F.3d 518, 524 (9th Cir. 2010)
(quoting United States v. Alpine Land & Reservoir
Co., 984 F.2d 1047, 1049 (9th Cir. 1993)), or to correct
a clear error, Gagan v. Sharar, 376 F.3d 987, 992
(9th Cir. 2004); Barcellos & Wolfsen, Inc. v.
Westlands Water Dist., 849 F.Supp. 717, 728 (E.D. Cal.
1993), aff'd sub nom. O'Neill v. United
States, 50 F.3d 677 (9th Cir. 1995). Although the court
construes defendant's brief on remedies as a motion for
reconsideration, the court also could sua sponte
reconsider a final order under Rule 60(b) to correct its own
mistakes. Kingvision Pay-Per-View Ltd. v. Lake Alice
Bar, 168 F.3d ///// 347, 351-52 (9th Cir. 1999);
Colmar v. Jackson Band of Miwuk Indians, No.
09-0742, 2011 WL 2456628, at *2 (E.D.Cal. Jun. 15, 2011).
explained below, the court concludes it erred in granting
plaintiffs' consulting party status. Seeing as it would
be manifestly unjust not to correct this error of law, the
court elects to do so now.
Consulting Parties under the NHPA
106 of the NHPA provides that a federal agency “shall
take into account” the effect of the issuance of a
license, such as the cattle grazing permit at issue in this
case, on any historic property. See 54 U.S.C. §
306108; see also Muckleshoot Indian Tribe v. U.S. Forest
Serv., 177 F.3d 800, 805 (9th Cir. 1999) (“Section
106 of NHPA is a “stop, look, and listen”
provision that requires each federal agency to consider the
effects of its programs.”). To carry out this broad
purpose, the NHPA establishes the Advisory Council on
Historic Preservation. See 54 U.S.C. § 304101.
The Advisory Council has issued regulations to implement the
NHPA, see 36 C.F.R. Part 800, and these regulations
are binding on agencies, Te-Moak Tribe of W. Shoshone of
Nevada v. U.S. Dep't of Interior, 608 F.3d 592, 607
(9th Cir. 2010). “These regulations require that the
relevant agency consult with a number of specified parties to
identify historic properties, assess the adverse effects that
the proposed project would have on those properties, and
‘seek ways to avoid, minimize or mitigate any adverse
effects.'” Mid States Coal. for Progress v.
Surface Transp. Bd., 345 F.3d 520, 553 (8th Cir. 2003)
(quoting 36 C.F.R. § 800.1(a)); accord Muckleshoot
Indian Tribe, 177 F.3d at 805.
agencies have a general duty under the Advisory Council
regulations to “provide the public with information
about an undertaking and its effects on historic properties
and seek public comment and input.” 36 C.F.R. §
800.2(d)(2). Agencies also have a specific duty to involve
certain individuals and organizations, called
“consulting parties, ” in the agency's NHPA
review. See 36 C.F.R. § 800.3(f). Specifically,
an agency must invite as consulting parties all state
historic preservation officers, Indian tribes, local
government representatives, and the project applicant when
these parties meet certain statutory criteria. 36 C.F.R.
§§ 800.2(c)(1)- (4), 800.3(f). In addition to those
entities enumerated in section 800.2(c) as consulting parties
as a matter of right, other “individuals and
organizations with a demonstrated interest in the undertaking
may participate as consulting parties due to the nature of
their legal or economic relation to the undertaking . . . or
their concern with the undertaking's effects on historic
properties, ” 36 C.F.R. § 800.2(c)(5), but only
“if they request participation in writing and the
agency determines that they should be granted consulting
party status, ” Mid States Coal. for Progress,
345 F.3d at 553 (citing 36 C.F.R. § 800.3(f)(3));
accord Neighborhood Ass'n of The Back Bay, Inc. v.
Fed. Transit Admin., 407 F.Supp.2d 323, 334 (D. Mass.
2005), aff'd, 463 F.3d 50 (1st Cir. 2006).
prior order, this court found the Winnemen Wintu Tribe
“ha[d] a sufficiently demonstrated and documented
interest in [the Coonrod site] . . . to give it consulting
[party] status . . . under either 36 C.F.R. §
800.2(c)(5) (demonstrated interest) or § 800.2(d) (the
public).” Order at 23. Upon reconsideration, this
finding was incorrect. Under the Advisory Council's
regulations, the Winnemen Wintu Tribe, a non-federally
recognized Indian tribe, is not automatically entitled to
consulting party status. Instead, the Tribe “may”
be eligible to participate as a consulting party because it
has a “demonstrated interest, ” 36 C.F.R. §
800.2(c)(5), but first it must request consulting party
status, in writing, from the agency, 36 C.F.R. §
800.3(f)(3). The agency must then determine whether or not to
grant consulting party status. Id.; see also Mid
States Coal. for Progress, 345 F.3d at 553. In this
case, there is no indication the Tribe requested consulting
party status from the USFS, in writing or otherwise. The
Tribe is therefore entitled only to general notice and
comment, and to have its views considered, as a member of the
public. See 36 C.F.R. § 800.2(d).
found the Tribe is not a consulting party by right, there is
no evidence the USFS violated the NHPA. The record shows the
USFS took into account the effects of issuance of the cattle
grazing permit on the Coonrod site, as is mandated by section
106 of the NHPA for National Historical Places. The record
also shows the USFS completed its section 106 analysis in
2007, the same year the Coonrod site was designated a
National Historic Place under the NHPA. See AR
955-960. In completing the section 106 analysis, the ...