Judge says public Rattlesnake Mountain tours improperly planned

Wildflower tours scheduled to include a guided visit to the top of Rattlesnake Mountain this spring will not be held following a federal court decision Friday.

U.S. Judge Thomas Rice ruled that the U.S. Fish and Wildlife Service did not follow required procedures when it decided to expand the number of spring tours offered that could include a stop on Rattlesnake Mountain.

The federal government should have reopened talks with the tribes before deciding in June 2012 that expanding the tours would have no adverse effect, Rice said in an order. If Fish and Wildlife proposes conducting more wildflower tours on the mountain, it must consult with the tribes, the judge said.

“We are going to work with the tribes and all interested parties to provide access to Rattlesnake Mountain,” said Charlie Stenvall, Fish and Wildlife project leader for the Mid-Columbia River National Wildlife Refuge Complex, on Friday.

However, it is difficult to say when wildflower tours might resume, he said.

The court’s decision came after federal legislation was approved in December requiring Fish and Wildlife to allow at least limited public access, such as guided wildflower tours, to the top of Rattlesnake Mountain.

“It’s a difficult situation,” Stenvall said. “We are mandated to provide access to Rattlesnake.”

The court’s decision addresses an earlier plan for tours of the mountain, he said.

Hanford area tribes have objected to public tours on Rattlesnake Mountain, the highest point in the Mid-Columbia, since at least 2010. The Yakama Nation, later joined by the Umatilla Tribes, filed a lawsuit in 2014 to stop spring wildlflower tours that include a stop at the top of Rattlesnake Mountain as a highlight, weather permitting.

The mountain, which tribes call Laliik, was designated a traditional cultural property under the National Historic Preservation Act in 2007 because it is a sacred location for area tribes. The tours would diminish the sacred quality of the mountain, the tribes have said.

Access to the mountain has been restricted since 1943, when much of it was included as part of the security perimeter of the Hanford nuclear reservation.

Beginning in 2010, Fish and Wildlife consulted with area tribes about organizing limited public bus tours of Rattlesnake Mountain. The National Historic Preservation Act requires consultation with tribes on undertakings if a culturally significant site could be affected.

Two years later, Fish and Wildlife concluded that the tours would have no adverse effect. The agency at the time proposed two small guided bus tours on a single spring day with a proposed stop at the top of Rattlesnake Mountain.

“The wildflower tour is a transitory event,” its report stated. “Like a jet and its contrail high over a wilderness area, the wildflower tour is a fleeting intrusion.”

Soon after the finding of no adverse effect, it proposed expanding to program from two tours a year to up to 12 spring tours per year over five years. Buses would be used, but the type smaller than full-size.

Fish and Wildlife said that the additional tours would be a slight change and did not consult with the tribes, according to court documents.

The agency, through its attorneys, “boldly assert that they were not required to re-consult with the tribes on the updated June undertaking because the tribes had already voiced their concerns about wildflower tours … and have not demonstrated what additional information, if any, they would have provided in regard to the expanded program of wildflower tours,” the judge said in the court order.

He found that Fish and Wildlife did not attempt to provide any meaningful opportunity for the tribes to comment on the expanded program of tours.

“If the ‘effect’ of the undertaking, whether or not it is adverse, is the public’s intrusion on the otherwise isolated and sacred setting … surely the tribes should be afforded the opportunity to provide additional comments and insight when the (Fish and Wildlife) Service augments this intrusion,” the judge wrote.

The original finding of no adverse effect was made for tours that would permit up to 50 people access to the mountain in a year. But the expansion would have allowed up to 1,500 members of the public access over five years to the site, the judge found.

The law was clear in the procedures Fish and Wildlife should have followed to consult with the tribes, according to the ruling.

“It’s important for a federal agency to make sure procedures are properly followed,” said Tom Zeilman, the attorney representing the Yakama Nation.

After reopening consultation with the tribes, Fish and Wildlife may reasonably conclude that the expanded programs of wildflower tours will have no adverse effect on Laliik, the judge wrote. But he also found that such a hypothetical scenario cannot influence the court’s analysis.

Last spring, Rice denied a request by the Yakama Nation to order Fish and Wildlife to cancel tours after the first two days of the tours had already been held.

“Though the tribe certainly has a strong interest in preservation of its culture and spiritual interest, the public also has an interest in being allowed to see and experience the land, as long as precautions are taken to preserve the nature of the place,” Rice said then in his written order.

Since that ruling, the plaintiffs have had time to gather additional information to present to the judge so he could more clearly see the facts of the case, Zeilman said.

Rattlesnake Mountain is part of the land ceded by the Yakama Nation to the United States under the Treaty of 1855, but the tribes retain religious and other rights to the land.

This story was originally published March 21, 2015 at 5:44 PM with the headline "Judge says public Rattlesnake Mountain tours improperly planned."