## Facts

- The U.S. Forest Service proposed two major timber sales in the Tongass National Forest: the Northwest Baranof project (near Sitka on Baranof Island) and the Eight Fathom project (near Hoonah on Chichagof Island).
- The Forest Service issued Final Environmental Impact Statements for the projects in 1996, identifying numerous historic properties potentially eligible for the National Register of Historic Places.
- Hoonah Indian Association and the Sitka Tribe of Alaska asserted that the timber sales threatened a culturally significant area associated with the Tlingit Kiks.ádi clan’s “Survival March” following an 1804 attack near present-day Sitka.
- The fort site connected to the 1804 events was already a recognized historic property, but the exact route of the Survival March was not documented in contemporaneous records and was preserved mainly through oral tradition with varying accounts.
- The Forest Service consulted with tribal representatives and cultural experts, considered oral and ethnographic information, and identified many potentially eligible historic properties, but declined to treat the Survival March route as eligible because it could not be reliably fixed to a definable location.
- The tribes sued seeking injunctive and other relief, alleging violations of the National Historic Preservation Act (NHPA) and the Alaska National Interest Lands Conservation Act (ANILCA); the district court entered judgment for the Forest Service.

## Issues

1. Whether the Forest Service violated NHPA by not treating the Kiks.ádi Survival March route as a historic property eligible for inclusion in the National Register based primarily on oral history evidence.
2. Whether the Forest Service’s determination that the route could not be identified with adequate specificity was arbitrary and capricious under the Administrative Procedure Act.
3. Whether the Forest Service complied with ANILCA in evaluating and addressing subsistence-related and associated cultural concerns in approving the timber sales.

## Decision

- The Ninth Circuit affirmed judgment for the Forest Service.
- The court held that the Forest Service did not violate NHPA and did not act arbitrarily or capriciously in declining to find the Survival March route National Register–eligible where the record did not allow the route to be located with sufficient specificity.
- The court rejected the ANILCA challenge, concluding that the Forest Service adequately considered subsistence impacts (including effects on deer habitat), alternatives, and mitigation measures in its analysis.

## Legal Principles

- NHPA’s protections apply to a “district, site, building, structure, or object” that is listed on or eligible for the National Register; eligibility requires a definable, identifiable property, not merely a historically significant event in a generalized area.
- Agencies must consider relevant evidence, including tribal oral history, when identifying potentially eligible historic properties, but may weigh the reliability and specificity of that evidence in deciding whether a property is sufficiently locatable.
- Under the APA’s arbitrary-and-capricious standard, courts uphold agency determinations where the agency considered relevant factors, reviewed the record, and articulated a rational connection between the evidence and its conclusions.
- ANILCA requires consideration of subsistence uses and rural Alaska interests; compliance is satisfied where the agency meaningfully analyzes subsistence impacts and responds through reasoned selection among alternatives and mitigation measures.

## Conclusion

The Ninth Circuit upheld the Forest Service’s approval of two Tongass timber sales, concluding that the agency reasonably determined the alleged Survival March route was not an NHPA-eligible historic property because it could not be sufficiently located, and that the agency’s subsistence analysis satisfied ANILCA under deferential APA review.


Hoonah Indian Ass'n v. Morrison, 170 F.3d 1223 (9th Cir. 1999)