Native Americans for Enola v. U.S. Forest Service

Native Americans for Enola, et al., appeal the district court’s decision that the Forest Service, United States Department of Agriculture (“Forest Service”), did not violate Section 106 of the National Historic Preservation Act, 16 U.S.C. § 470 et seq., in issuing a permit allowing commercial use of a Forest Service road. The permit was required to allow the company, Ray Schoppert Logging, Inc., to use Forest Service roads when hauling timber harvested from a privately-owned stretch of land located entirely within Oregon’s Mt. Hood National Forest.

Because all logging contemplated in this application for a permit has now been completed, and the permit has expired, the first question is whether this action is moot. The parties have argued that this case is an exception to the mootness doctrine because the assessments of Enola Hill’s status relied upon by the Forest Service will be relied upon again in evaluating future undertakings, and thus be capable of repetition while evading review. This court has held that agency actions will indeed fall within this exception to the general principle if “(1) the duration of the challenged action is too short to allow full litigation before…