Caddo Nation of Okla. v. Wichita & Affiliated Tribes, No. 16-6161

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: TYMKOVICH, Chief Judge.
• Citation: 877 F.3d 1171
• Parties: CADDO NATION OF OKLAHOMA, Plaintiff-Appellant, v. WICHITA AND AFFILIATED TRIBES; Terri Parton, in her official capacity as Tribal President of Wichita and Affiliated Tribes; Jesse E. Jones, in his official capacity as Vice President of the Wichita and Affiliated Tribes; Myles Stephenson, Jr., in his official capacity as Secretary of the Wichita and Affiliated Tribes; S. Robert White, Jr., in his official capacity as Treasurer of the Wichita and Affiliated Tribes; Shirley Davila, in her official capacity as Committee Member of the Wichita and Affiliated Tribes; Gladys Walker, in her official capacity as Committee Member of the Wichita and Affiliated Tribes; Karen Thompson, in her official capacity as Committee Member of the Wichita and Affiliated Tribes, Defendants-Appellees.
• Docket Number: No. 16-6161
• Decision Date: 18 December 2017

877 F.3d 1171

CADDO NATION OF OKLAHOMA, Plaintiff-Appellant,
v.
WICHITA AND AFFILIATED TRIBES; Terri Parton, in her official capacity as Tribal President of Wichita and Affiliated Tribes; Jesse E. Jones, in his official capacity as Vice President of the Wichita and Affiliated Tribes; Myles Stephenson, Jr., in his official capacity as Secretary of the Wichita and Affiliated Tribes; S. Robert White, Jr., in his official capacity as Treasurer of the Wichita and Affiliated Tribes; Shirley Davila, in her official capacity as Committee Member of the Wichita and Affiliated Tribes; Gladys Walker, in her official capacity as Committee Member of the Wichita and Affiliated Tribes; Karen Thompson, in her official capacity as Committee Member of the Wichita and Affiliated Tribes, Defendants-Appellees.

No. 16-6161

United States Court of Appeals, Tenth Circuit.

Filed December 18, 2017

Mary Kathryn Nagle (Wilson Pipestem and Abi Gain with her on the briefs), Pipestem Law, P.C., Tulsa, Oklahoma for Appellant.

William R. Norman (K. Kirke Kickingbird and Michael D. McMahan with him on the brief), Hobbs, Straus, Dean & Walker, LLP, Oklahoma City, Oklahoma, for Appellees.

Before TYMKOVICH, Chief Judge, HARTZ, and HOLMES, Circuit Judges.

TYMKOVICH, Chief Judge.

877 F.3d 1173

The Wichita Tribe has roots in parts of Oklahoma, Kansas, and Texas. Today, its reservation is located in the northern half of Caddo County, Oklahoma. To commemorate its history, the Tribe planned a Tribal History Center on nearby land the federal government holds in trust for the Wichita Tribe and two neighboring tribes. One of those neighbors, the Caddo Nation, claims the land may contain remains of ancestral relatives.

Before the Wichita Tribe began construction, Caddo Nation sued the Wichita Tribe for allegedly violating the procedures required by the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA) throughout the planning process. Caddo Nation sought an emergency temporary restraining order preventing Wichita Tribe from continuing construction until it complied with those procedures. When the district court denied that request, Caddo Nation appealed to this court without seeking further preliminary relief. In the intervening year while the case was on appeal in this court, Wichita Tribe completed construction of the History Center.

We conclude we have no jurisdiction over this appeal because the relief Caddo Nation requested from the district court—a temporary restraining order enjoining construction—is now moot. We thus grant Wichita Tribe's motion to dismiss this appeal.¹

I. Background

In 2015, Wichita and affiliated tribes made plans to build a History Center on a plot of land held by the federal government in trust for the Wichita Tribe, Delaware Nation, and Caddo Nation jointly.² In

877 F.3d 1174

Wichita Tribe's eyes, the History Center would both preserve its history and contribute to the Tribe's development of the area into a "destination business site." App. 122.

Wichita Tribe accepted funds for this project from the Department of Housing and Urban Development (HUD). In doing so, Wichita Tribe agreed to comply with all the statutory and regulatory requirements that would constrain HUD's own actions. See 42 U.S.C. § 5304(g) ; 24 C.F.R. §§ 58.2, 58.4, 58.5. These requirements include compliance with the National Historic Preservation Act and the National Environmental Policy Act. See 24 C.F.R. §§ 58.4, 58.5.

The National Historic Preservation Act requires federal agencies to "take into account the effect" of any "undertaking" on "any historic property." 54 U.S.C.A. § 306108 (2014).³ An "undertaking" includes a "project ... carried out with Federal financial assistance." 36 C.F.R. § 800.16. In taking into account a project's effect on historic property, the agency "shall consult with any Indian tribe ... that attaches religious and cultural significance" to the property. 54 U.S.C.A. § 302706(b). The Advisory Council on Historic Preservation, the body tasked with issuing regulations implementing the Act, has issued a slate of regulations regarding what such consultation requires. See 36 C.F.R. §§ 800.2 – 800.13. According to these regulations, agencies must provide a tribe with a "reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance, articulate its views on the undertaking's effects on such properties, and participate in the resolution of adverse effects." 36 C.F.R. § 800.2(c)(2)(ii).

The National Environmental Policy Act, in contrast, requires agencies to study and report on the environmental effects of "major Federal actions," see 42 U.S.C. § 4332 (C), which include "programs entirely or partly financed" by an agency, 40 C.F.R. § 1508.18. As part of this process, agencies must "study, develop, and describe appropriate alternatives" to the proposed action. 42 U.S.C. § 4332 (E). If an agency determines the project will not have a significant impact on the environment, it must prepare what is known as a "Finding of No Significant Impact" (FONSI) notice. 24 C.F.R. § 58.43(a). According to HUD's regulations for entities assuming HUD's Environmental Policy Act obligations, the "responsible entity" must "[a]s a minimum ... send the FONSI notice to individuals and groups known to be interested in the activities." Id.

On January 9, 2015, in an attempt to comply with the Historic Preservation Act's consultation requirement, the Wichita Tribe sent Caddo Nation a letter explaining its construction plans and requesting consultation. At the time, Caddo Nation's leadership was in disarray because of internal disputes then before the Federal Court of Indian Offenses for the Southern Plains.

The Caddo Nation did not respond to the letter and Wichita Tribe continued with its plans. Wichita Tribe then hired an archaeologist to assess the likelihood that the Tribe's chosen plot of land contained archaeological remains. The archaeologist concluded a section of the land might be eligible for the National Register because it was likely the site of the Riverside Indian School established in the area in 1871. Wichita Tribe instituted a 100-foot avoidance

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zone to protect that segment of land, labeled CD-352, from disturbance. It decided, however, not to commission any further studies.

On May 22, 2015, Wichita Tribe published a "Finding Of No Significant Impact" in the local Anadarko newspaper but did not send it to Caddo Nation. In January of the next year—a year after Wichita Tribe's first letter advising Caddo Nation of the project—Wichita Tribe sent Caddo Nation a letter explaining the archeological report and its continued construction plans.

In February 2016, Caddo Nation for the first time contacted Wichita Tribe to express concern over the location of the project. Caddo Nation leaders told Wichita Tribe that several elders believed the site contained Caddo graves. According to Caddo oral history, some children who attended the Riverside Indian School were buried near it. After this, the tribes held a series of unfruitful meetings at which Caddo Nation complained it was not properly consulted and Wichita Tribe claimed it had fulfilled its consultation obligations by sending the January 2015 letter. Wichita Tribe also contended that Caddo Nation had no basis for believing there were graves on the site. In its last proposal, Caddo Nation asked...