Nez Perce Tribe et al v. US Forest Service

Filing 44

MEMORANDUM DECISION AND ORDER. NOW THEREFORE IT IS HEREBY ORDERED, that the motion for preliminary injunction 5 is GRANTED. IT IS FURTHER ORDERED, that the Forest Service issue a Closure Order to Omega-Morgan pursuant to the Forest Services authori ty under 36 U.S.C. § 261.50. The Closure Order shall close Highway 12 between mileposts 74 and 174 to any Omega-Morgan mega-load, and shall remain in place until the Forest Service has conducted itscorridor review and consulted with the Nez Perc e Tribe. IT IS FURTHER ORDERED, that the parties may contact the Court's clerk to set up an evidentiary hearing if necessary. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
IN THE DISTRICT OF IDAHO
NEZ PERCE TRIBE and
IDAHO RIVERS UNITED
Case No. 3:13-CV-348-BLW
Plaintiffs,
v.

MEMORANDUM DECISION AND
ORDER

UNITED STATES FOREST SERVICE,
Defendant.
And
RESOURCES CONSERVATION
COMPANY INTERNATIONAL,
Defendant-Intervenor

INTRODUCTION
The Court has before it a motion for preliminary injunction filed by plaintiffs Nez
Perce Tribe and Idaho Rivers United. The Court heard oral argument on the motion on
September 9, 2013, and took the motion under advisement. For the reasons set forth
below, the Court will order the defendant Forest Service to close Highway 12 to OmegaMorgan’s mega-loads until certain conditions are met.
SUMMARY
In August, a transport company, Omega-Morgan, proposed to transport a very
large piece of equipment – referred to as a mega-load – over Highway 12. A portion of
that Highway passes through the Nez Perce-Clearwater National Forests administered by
the Forest Service, and along rivers designated for protection as Wild and Scenic Rivers –
Memorandum Decision & Order – page 1

the Middle Fork of the Clearwater and the Lochsa. After reviewing Omega-Morgan’s
proposal, the Forest Service determined that the mega-load had the potential to affect the
values it must protect. It decided to conduct a review of the mega-load’s impacts and
consult with the Nez Perce Tribe, who hold treaty rights in the National Forest land. To
buy time, the Forest Service asked the State of Idaho to wait for that review before
granting any permit. The State ignored that request and granted the permit. Although the
Forest Service notified Omega-Morgan that it had not approved the load, Omega-Morgan
nevertheless proceeded to transport the load. The Forest Service let the load pass through
the National Forests and took no enforcement action against Omega-Morgan.
Another Omega-Morgan mega-load is scheduled to proceed down Highway 12 on
September 18, 2013. The Nez Perce Tribe and Idaho Rivers United have brought this
lawsuit against the Forest Service to stop that shipment. In this decision, the Court orders
the Forest Service to close Highway 12 (between mileposts 74 and 174) to the OmegaMorgan mega-load awaiting transport, until certain conditions have been met. The
grounds for this decision are discussed below.
FACTUAL BACKGROUND
Highway 12 and the Wild and Scenic River Corridor
The Idaho segment of U.S. Highway 12 is a two-lane highway that runs 177 miles
from the port of Lewiston east to Lolo Pass at the Montana border. As the Highway
leaves Lewiston and heads east, it follows the Clearwater River and passes through the
Nez Perce Reservation. After traveling through 70 miles or so of Reservation land, the

Memorandum Decision & Order – page 2

Highway picks up the Lochsa River and enters the Nez Perce-Clearwater National
Forests, federal land regulated by the Forest Service.
The word “Lochsa” is a Nez Perce word meaning “rough water.” The Nez Perce
people hunted and fished in the Lochsa River area, and used trails along the River to
travel to buffalo hunting grounds in Montana. See Declaration of Whitman (Dkt. No. 10)
at p. 2. Later, the Lewis and Clark expedition used the Nez Perce trails in their travels
west. Id. Although the National Forests are no longer part of the Nez Perce Reservation,
the Tribe retains treaty rights in the lands, and the Forest Service manages these National
Forests consistent with those treaty rights. As the Forest Service states on its website:
“[The] Nez Perce people still maintain strong ties with their homeland and work
cooperatively with us as stewards of the precious forest resources.”1
The State of Idaho constructed the Highway in the 1950s and ‘60s. The Forest
Service issued the State special use permits authorizing it to construct the Highway
through the Forest. Until 1995, the State administered the Highway pursuant to these
special-use permits and two memoranda of understanding.
In 1995, the Forest Service conveyed an easement to the FHWA, which it then
conveyed to the State. The State recorded the Highway Easement Deed in 1997. The
Deed grants the Idaho Transportation Department (“ITD”) a right-of-way for the
operation and maintenance of a highway through the Forest. The easement is subject to

1

The Nez Perce-Clearwater National Forests website is found at
http://www.fs.usda.gov/main/nezperceclearwater/workingtogether/tribalrelations

Memorandum Decision & Order – page 3

various conditions, including that the State shall “[p]rotect and preserve soil and
vegetative cover and scenic and esthetic values on the right of way outside of
construction limits.”
The Highway runs along the Middle Fork of the Clearwater and Lochsa Rivers.
Both rivers were designated as Wild and Scenic Rivers by the passage of the Wild and
Scenic Rivers Act in 1968. See 16 U.S.C. § 1274(a)(1). The Act tasked the Forest
Service with administration of these river systems “in such manner as to protect and
enhance . . . [their] esthetic, scenic, historic, archeologic, and scientific features.” 16
U.S.C. § 1281(a)
In an earlier decision in a related case, the Court held that the Forest Service must
“enforce all relevant legal authorities, including, but not limited to, the Wild and Scenic
Rivers Act . . . .” See Judgment (Dkt. No. 64 in IRU v Forest Service 1:11-CV-95BLW)(emphasis added). The Court held that under the Wild and Scenic Rivers Act, the
Forest Service has the duty to “protect such rivers.” 16 U.S.C. § 1283(a). The Forest
Service must ensure that the designated rivers are “preserved in free-flowing condition.”
16 U.S.C. § 1271. The State of Idaho operated Highway 12 under the terms of an
easement granted by the Government. The Wild and Scenic Rivers Act requires that the
easement be “related to the policy and purposes of the Act.” 16 U.S.C. § 1284(g). As the
protector of the designated rivers, the Forest Service has the authority to enforce all the
relevant legal standards that govern the use of the National Forest and Wild and Scenic
River corridor along Highway 12.

Memorandum Decision & Order – page 4

In response to that ruling, the Forest Service established criteria for determining
when a large load would require agency review. Under these criteria, review would be
triggered for loads that
1. Require traffic to be fully stopped (either on or adjacent to the highway) to
allow passage of the oversized load, or
2. Require longer than 12 hours to travel through the Wild and Scenic River
Corridor and National Forest ([mile posts] 74 to 174), or
3. Require physical modification of the roadway or adjacent vegetation to
facilitate passage beyond normal highway maintenance.
See Letter Dated June 17, 2013 (Dkt. No. 8). The Forest Service applied these criteria to
a Traffic Control Plan submitted by Omega-Morgan describing how it would convey
mega-loads over Highway 12. Omega-Morgan is a heavy-hauling company under
contract with Intervenor-Defendant Resources Conservation Company International
(RCCI) to transport RCCI’s large evaporators to a client in Canada. See Declaration of
Heins (Dkt. No. 21-2). It proposed to transport loads that were 255 feet long, 21 feet
wide, and 23 feet tall. See Plan, Exhibit 7 (Dkt.No. 9). The loads would each weigh
about 644,000 pounds. Id.
After reviewing Omega-Morgan’s Traffic Control Plan, Forest Supervisor Rick
Brazell stated that “[t]he Omega-Morgan proposal triggers all of these criteria.” Id. He
stated that “[t]ransport of such [mega-]loads may impact visitor and traveler experiences
and affect cultural and intrinsic values associated with the corridor.” See Letter Dated
June 17, 2013 (Dkt. No. 8). Observing that the impact of the mega-loads on those values
Memorandum Decision & Order – page 5

was “difficult to define,” Supervisor Brazell concluded that “[u]ntil we have a clear
understanding of these potential impacts, I cannot support authorization of such oversized
loads through the National Forest or within the Wild and Scenic River corridor.” Id.
The Forest Service and the ITD had a continuing dialogue over these criteria,
resulting in the Forest Service replacing the first criteria with a size requirement for
“loads greater than 16 feet wide or 150 feet long.” See Letter Dated July 26, 2013,
Exhibit 6 (Dkt. No. 8). During this dialogue, the ITD made it clear that it would issue
permits without waiting for the Forest Service’s review, and, after issuing its permit,
would send the transport company to the Forest Service to obtain a separate permit.
The Forest Service took issue with that approach, arguing that it had no
mechanism for issuing permits. In a letter to ITD dated July 26, 2013, the Forest Service
interpreted the Court’s earlier ruling as “putting the Forest Service in a review role, not a
permitting one.” See Letter Dated July 26, 2013, Exhibit 6 (Dkt. No. 8). The Forest
Service envisioned a division of duties, where “the State is responsible for permitting and
the Forest Service is responsible for reviewing prior to the State issuing permits.” Id.
Despite the Forest Service’s continuing pleas to ITD to wait for the Forest
Service’s review, the ITD issued a permit on August 2, 2013, to Omega-Morgan to
transport a mega-load over Highway 12. The permit informed Omega-Morgan that a
copy was being forwarded to the Forest Service for their review. Omega-Morgan
informed the Forest Service that it intended to transport the load beginning August 5,
2013.

Memorandum Decision & Order – page 6

After reviewing this particular Omega-Morgan mega-load, the Forest Service
notified Omega-Morgan, in a letter dated August 5, 2013, that the load met two of the
three criteria and that until the Forest Service could conduct a full review, the Forest
Service “does not consent, approve, or otherwise authorize Omega-Morgan to transport
the subject over-legal loads on US Highway 12 between [mileposts] 74 and 174.” Id.
See Letter dated August 5, 2013 (Dkt. No. 10). The Forest Service told Omega-Morgan
that the review would include (1) “a study examining such uses and their potential
impacts to the intrinsic values of the corridor”, and (2) “consultation with the Nez Perce
Tribe.” Id.
On August 5, 2013, the Nez Perce Tribal Chairman Silas C. Whitman called the
Chief of the Forest Service, Tom Tidwell, and asked him to stop the shipment. Chief
Tidwell declined, responding – according to Chairman Whitman – that “the Forest
Service does not have the authority to close the State highway.” See Declaration of
Whitman (Dkt. No. 10) at ¶ 16. That statement was consistent with Brazell’s earlier
statement – quoted above – interpreting the Court’s decision as “putting the Forest
Service in a review role, not a permitting one.” See Letter Dated July 26, 2013, Exhibit 6
(Dkt. No. 8). In other words, the Forest Service was taking the position that it had
authority to review but not to enforce. Obviously, that was an erroneous reading of the
Court’s decision.
Later that evening, Omega-Morgan started its transport of the mega-load. It
reached the National Forest and Wild and Scenic River corridor on August 8, 2013,
passing through without encountering any Forest Service enforcement action.
Memorandum Decision & Order – page 7

After the mega-load had left the State, the Forest Service wrote a letter to the Tribe
taking a different stance on the scope of its authority. In that letter, dated August 12,
2013, the Forest Service recognized that it had authority to enforce its regulatory
authority. The agency told the Tribe that it had “made the discretionary decision not to
seek enforcement action with respect to this shipment for a number of reasons.” See
Letter Dated August 12, 2013 (Dkt. No. 34). It went on to describe its ongoing
consultation with the Tribe, and its corridor study, which should be completed by
September 30, 2013. The Forest Service explained that until its review was completed,
“we have little basis to develop additional mitigation measures regarding the frequency or
duration of such loads to address potential social, cultural, or aesthetic impacts.” Id.
Omega-Morgan’s next mega-load is scheduled for September 18, 2013. While the
ITD has not yet granted a permit for that load, given the ITD’s past willingness to grant
permits, it is highly likely that the ITD will grant a permit and that the mega-load will
proceed on September 18, 2013.
The Tribe and IRU now seek a mandatory injunction to require the Forest Service
“to enforce its already established jurisdictional authority to regulate the use of U.S.
Highway 12 within the Nez Perce-Clearwater National Forest, and ensure that no
transportation of mega-loads occurs on U.S. Highway 12 between Milepost 74 to
Milepost 174 . . . until the Forest Service conducts the corridor impacts study and
consultation with the Nez Perce Tribe it has already determined by agency directive are
required prior to the transport of any additional mega-loads.” See Motion (Dkt. No. 5).
LEGAL STANDARDS
Memorandum Decision & Order – page 8

To obtain a preliminary injunction, plaintiffs must establish that (1) they are likely
to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of
preliminary relief, (3) the balance of equities tips in their favor, and (4) an injunction is in
the public interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20
(2008). Courts must balance the competing claims of injury and must consider the effect
on each party of the granting or withholding of the requested relief. Id. at 24.
ANALYSIS
The Forest Service has made two key decisions in this case. First, it decided to
review the impacts of Omega-Morgan’s mega-load, and consult with the Tribe, because
the mega-load was so large and so slow it might affect the values the Forest Service must
protect. See Letter Dated June 17, 2013 (Dkt. No. 8)(Forest Supervisor Brazell stated
that “[t]ransport of such [mega-]loads may impact visitor and traveler experiences and
affect cultural and intrinsic values associated with the corridor)”. Second, it decided that
until it completes that review and consultation, it will not consider enforcing its statutory
authority to block these mega-loads.2
Plaintiffs are challenging the second decision. The Forest Service argues that
there is no final agency action subject to review. Here, the Chief of the Forest Service
denied the Tribe’s plea to close the road by telling Chairman Whitman that the Forest
2

The Court assumes, for the purpose of this proceeding, that the Forest Service now recognizes
that it has the authority to enforce its statutory and regulatory power over Highway 12 between mileposts
74 and 174. That was not the case when the agency waved through the first Omega-Morgan shipment.
The documents quoted above show that the agency believed it had no authority to enforce – an erroneous
reading of the Court’s opinion. But after that shipment was complete, it appears the Forest Service
revised its position and is now correctly interpreting the Court’s earlier decision.

Memorandum Decision & Order – page 9

Service had no authority to close the road. That appears to be a final decision denying
the request of the Tribe, and the Court finds it likely that the Tribe will prevail on this
issue. See Oregon Natural Desert Ass’n v. U.S. Forest Service, 465 F.3d 977, 982 (9th
Cir. 2006).
Even so, the Forest Service argues, it is non-reviewable under Heckler v. Chaney,
470 U.S. 821 (1985). That case held that “[a]n agency’s decision not to prosecute or
enforce, whether through civil or criminal process, is a decision generally committed to
an agency’s absolute discretion.” Id. at 831. The Forest Service argues that it made a
decision not to enforce, and explained that in its letter dated August 12, 2013: “The
Forest Service has made the discretionary decision not to seek enforcement action with
respect to this shipment for a number of reasons.” See Letter Dated August 12, 2013
(Dkt. No. 34). This decision not to take enforcement action, the Forest Service argues, is
immune from review under Heckler.
Even under Heckler, an agency decision not to enforce is reviewable where “the
agency has consciously and expressly adopted a general policy that is so extreme as to
amount to an abdication of its statutory responsibilities.” Heckler, 479 U.S. at 833 n. 4.
The issue here is whether the plaintiffs’ are likely to establish that the Forest Service’s
failure to consult with the Tribe before deciding not to exercise its enforcement authority
was an “abdication of its statutory responsibilities.”
Although the Nez Perce ceded the lands now encompassing the Nez PerceClearwater National Forests to the United States, “they did not relinquish rights to hunt,
fish, and gather, or to practice traditional religious and cultural ceremonies on these
Memorandum Decision & Order – page 10

ancestral homelands.” See Nez Perce-Clearwater National Forest Website.3 Those
rights are contained in the “Treaty with the Nez Perces, 1855”, 12 Stat. 957 (1859)
(securing to Tribal members the “right of taking fish at all usual and accustomed places”
and “the privilege of hunting . . . upon open and unclaimed land”). The Forest Service
recognizes these rights in describing its working relationship with the Tribe: “[The] Nez
Perce people still maintain strong ties with their homeland and work cooperatively with
us as stewards of the precious forest resources.” Forest Service Website, supra.
This cooperative relationship is memorialized in the Forest Plans that govern these
National Forests.4 For example, the Clearwater Forest Plan directs the Forest Service to
“[e]nsure that Forest actions are not detrimental to the protection and preservation of
Indian Tribes’ religious and cultural sites and practices and treaty rights.” See Forest
Plan at II-23.5 The Forest Service has a statutory duty, under the National Forest
Management Act (NFMA), to act consistently with this Forest Plan direction. See 16
U.S.C. § 1604(a)(i).
Overarching this statutory duty, is the Government’s duty as trustee over the
Tribe. The Supreme Court has held that the “constitutionally recognized status of Indians
justifies special treatment on their behalf when rationally related to the Government’s
3

This official Forest Service website is found at
http://www.fs.usda.gov/main/nezperceclearwater/workingtogether/tribalrelations
4

The Nez Perce National Forest and the Clearwater National Forest were administratively
combined in 2012.
5

The Forest Plan for the Clearwater National Forest is a public document that can be found at
http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5400608.pdf

Memorandum Decision & Order – page 11

unique obligation toward the Indians.” Washington v. Washington Commercial
Passenger Fishing Vessel Assoc., 443 U.S. 658, 673 n. 20 (1979).
The Forest Service has recognized at least a part of its duty to the Tribe by starting
the consultation process and the corridor study. The Forest Service initiated these actions
because the Omega-Morgan loads were so large, and traveled so slowly, that they posed a
potential threat to the values managed by the Forest Service. See Letter Dated June 17,
2013 (Dkt. No. 8)(wherein Forest Supervisor Brazell states that “[t]ransport of such
[mega-]loads may impact visitor and traveler experiences and affect cultural and intrinsic
values associated with the corridor)”. Thus, under the Forest Plan, quoted above, the
mega-loads at least had the potential to be “detrimental to the protection and preservation
of Indian Tribes’ religious and cultural sites and practices and treaty rights.” Forest Plan,
supra, at II-23.
All of this triggered a duty on the part of the Forest Service to consult with the
Tribe. A meaningful consultation takes place “typically before undertaking a course of
action.” California Wilderness Coalition v. U.S. Dept. of Energy, 631 F.3d 1072, 1087
(9th Cir. 2011) (emphasis in original) (citations omitted). When the duty to consult runs
to a Tribe, the federal agency generally must consult with the Tribe before taking the
action at issue. See Confederated Tribes & Bands of Yakima Indian Nation v. FERC, 746
F.2d 466 (9th Cir.1984) (holding that consultation occurring after issuance of report
affecting Tribe did not satisfy duty of federal agency to consult with Tribe).
Before consulting with the Tribe in this case, the Forest Service decided not to
exercise its enforcement authority until its review and consultation are completed. The
Memorandum Decision & Order – page 12

practical effect of that decision is to wave through the next shipment set for September
18, 2013. This may, in Forest Supervisor Brazell’s own words, “impact visitor and
traveler experiences and affect cultural and intrinsic values associated with the corridor.”
See Letter Dated June 17, 2013 (Dkt. No. 8). To allow a shipment with that potential to
proceed before consulting with the Tribe is likely an “abdication of statutory
responsibilities,” reviewable under Heckler. Heckler, 479 U.S. at 833 n. 4.
Moreover, a consultation would be meaningless if held before the corridor study;
otherwise, the Tribe goes into the consultation blind, being forced to guess about impacts.
Thus, the consultation must be conducted after the corridor study and before any further
Omega-Morgan mega-loads pass through.
The Forest Service argues, however, that because it has no permit system in place,
it cannot close the Highway by “withdrawing” a permit, having never granted a permit in
the first place. But the Forest Service does have the authority to issue closure orders for
particular uses. The Forest Service regulations grant authority to a Forest Supervisor to
“issue orders which close or restrict the use of described areas within the area over which
he has jurisdiction.” See 36 C.F.R. § 261.50. The closure order is authorized to prohibit
(1) “[u]sing a road for commercial hauling without a permit or written authorization,” (2)
“any type of vehicle prohibited by the order,” and (3) “[o]perating a vehicle in violation
of the speed, load, weight, height, length, width, or other limitations specified by the
order.” Id. at § 261.54.
These regulations clearly contemplate a closure order that would apply only to a
particular use, such as a mega-load. To the degree that the Forest Service’s litigation
Memorandum Decision & Order – page 13

position constitutes the agency’s definition of its own regulations, the Court finds the
interpretation unreasonable and hence unpersuasive. Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984) (holding that an
unreasonable interpretation by an agency of its regulations is not entitled to deference).
The Court has held that the Forest Service has enforcement authority over
Highway 12 to the extent it passes through the Nez Perce-Clearwater National Forests –
that is, between mileposts 74 and 174. The Forest Service thus has the authority to close
that portion of Highway 12 to Omega-Morgan’s mega-loads.
For all of these reasons, the Court holds that plaintiffs are likely to succeed on the
merits. The Court also finds that they are likely to suffer irreparable harm if no
injunction is issued. The plaintiffs are not seeking damages; they are seeking to preserve
their Treaty rights along with cultural and intrinsic values that have no price tag.
The defendants argue, however, that the balance of equities tips in their favor, and
that their injury from an injunction will be severe. Intervenor/Defendant RCCI argues
that it if the Omega-Morgan loads are stopped, it could suffer losses of over $5 million.
See Declaration of Heins (Dkt. No. 21-2) at ¶ 21. This is a reasonable estimate given the
huge size of these loads – the equipment is obviously specialized and expensive. The
size of this loss weighs heavy in the Court’s analysis. It appears, however, that this loss
could have been avoided.
In April of 2013, plaintiffs’ counsel sent a letter to Omega-Morgan putting them
on notice that they would be attempting to block any shipments down Highway 12 unless
Omega-Morgan obtained permission from the Forest Service. See Letter dated April 4,
Memorandum Decision & Order – page 14

2013 (Dkt. No. 38-1). The letter also described other shippers who incurred substantial
expenses due to litigation delays over the use of Highway 12.
Two months before this letter, the Court had issued its decision of February, 2013,
holding that the Forest Service had its own enforcement authority. The Forest Service
had decided in June of 2013 that it needed to conduct a further review before approving
these mega-loads, and expressed its concern that they might affect the values it must
protect.
RCCI decided, however, to proceed before the Forest Service could complete its
corridor study and consultation with the Tribe. In other words, RCCI knowingly put its
loads into a position where the company would incur $5 million in losses if it must wait
for the Forest Service review. Given these circumstances, the Court cannot find that the
balance of equities tips in defendants’ favor. In fact, it tips the other direction due to the
clear command of the Tribe’s Treaty rights, NFMA, and the Wild and Scenic Rivers Act.
For those same reasons, the Court finds that an injunction is in the public interest.
Conclusion
The Court will grant the motion for injunction. The Court will order the Forest
Service to issue a Closure Order to Omega-Morgan pursuant to the Forest Service’s
authority under 36 U.S.C. § 261.50. The Closure Order shall close Highway 12 between
mileposts 74 and 174 to any Omega-Morgan mega-load, and shall remain in place until

Memorandum Decision & Order – page 15

the Forest Service has conducted its corridor review and consulted with the Nez Perce
Tribe.6
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for preliminary
injunction (docket no. 5) is GRANTED.
IT IS FURTHER ORDERED, that the Forest Service issue a Closure Order to
Omega-Morgan pursuant to the Forest Service’s authority under 36 U.S.C. § 261.50. The
Closure Order shall close Highway 12 between mileposts 74 and 174 to any OmegaMorgan mega-load, and shall remain in place until the Forest Service has conducted its
corridor review and consulted with the Nez Perce Tribe.
IT IS FURTHER ORDERED, that the parties may contact the Court’s clerk to set
up an evidentiary hearing if necessary.

6

The parties have all assumed that this Court must follow the standards for preliminary
injunction set forth in Winter, quoted above. However, it is unclear whether the mandatory injunction
sought by plaintiffs is governed by the law relating to writs of mandamus under 28 U.S.C. § 1361. See
Fallini v. Hodel, 783 F.2d 1343 (9th Cir. 1986) (holding that relief seeking to command a federal agency
to take affirmative action is governed by § 1361); 5 U.S.C. § 703 (including as a remedy a “mandatory
injunction”). In any event, the result is the same. Mandamus relief is only available to compel an officer
of the United States to perform a duty if (1) the plaintiff’s claim is clear and certain; (2) the duty of the
officer “is ministerial and so plainly prescribed as to be free from doubt,” and (3) no other adequate
remedy is available. Patel v. Reno, 134 F.3d 929, 931 (9th Cir.1997). There is nothing ambiguous about
plaintiffs’ claim seeking to block the mega-loads. The duty of the Forest Service to conduct a
consultation after finding that the mega-loads might affect cultural and intrinsic values is commanded by
Treaty rights, NFMA, and the Forest Plans – there is no discretion to refuse consultation. Finally, the
plaintiffs are not seeking damages and there is no other adequate remedy besides blocking the megaloads.
Memorandum Decision & Order – page 16

DATED: September 12, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision & Order – page 17