San Carlos Apache Tribe v. U.S., No. 03-16874.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtMcKeown
Citation417 F.3d 1091
PartiesSAN CARLOS APACHE TRIBE, a federally recognized Indian tribe; Velasquez Sneezy, Sr.; Elliott Talgo, Sr.; Paul Nosie, Jr., Plaintiffs-Appellants, Gila River Indian Community, Intervenor-Appellee, v. UNITED STATES of America; United States Department of the Opinion Interior; San Carlos Irrigation & Drainage District; Neil McCaleb, Director of the Bureau of Indian Affairs; Gail Norton, Secretary of the U.S. Department of the Interior; Steven A. Williams, Defendants-Appellees.
Decision Date09 August 2005
Docket NumberNo. 03-16874.
417 F.3d 1091
SAN CARLOS APACHE TRIBE, a federally recognized Indian tribe; Velasquez Sneezy, Sr.; Elliott Talgo, Sr.; Paul Nosie, Jr., Plaintiffs-Appellants,
Gila River Indian Community, Intervenor-Appellee,
v.
UNITED STATES of America; United States Department of the Opinion Interior; San Carlos Irrigation & Drainage District; Neil McCaleb, Director

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of the Bureau of Indian Affairs; Gail Norton, Secretary of the U.S. Department of the Interior; Steven A. Williams, Defendants-Appellees.
No. 03-16874.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 17, 2005.
Filed August 9, 2005.

Joe P. Sparks and Susan B. Montgomery, Sparks, Tehan & Ryley, Scottsdale, AZ, for the plaintiffs-appellants.

Michael T. Gray and Susan L. Pacholski, U.S. Department of Justice, Washington, D.C., for the defendants-appellees.

Riney B. Salmon, II, Salmon, Lewis & Weldon, Phoenix, AZ, for the intervenor-appellee.

Rodney B. Lewis and John T. Hestand, Chandler, AZ, for the intervenor-appellee.

Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding. D.C. No. CV-99-00255-DCB.

Before HAWKINS, McKEOWN, and CLIFTON, Circuit Judges.

McKEOWN, Circuit Judge.


In this action for injunction against the United States, the San Carlos Apache Tribe ("Tribe") seeks to maintain certain water levels in the San Carlos Reservoir ("Reservoir") in Arizona. The Tribe brought suit under various federal laws and federal common law and is primarily concerned with damage to the environment, including to fish and other species, caused by decreased water flow into the Reservoir. Our focus here is the Tribe's claim under § 106 of the National Historic Preservation Act ("NHPA"),1 16 U.S.C. §§ 470 et seq., which requires that federal agencies "take into account the effect of the[ir] undertaking[s] on any district, site,

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building, structure, or object that is included in or eligible for inclusion in the National Register." The Tribe argues that its suit is properly brought as a private right of action directly under NHPA rather than under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq.

Whether § 106 provides a private right of action against the United States is a question of first impression in this circuit and one that we consider in light of Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). The district court dismissed the § 106 claim on the ground that NHPA contains no such private right of action.2 We agree and affirm.

BACKGROUND

In 1924, Congress authorized construction of the Coolidge Dam as a means of providing water to the Pima Indians. Congress provided that any excess water was to be used "for the irrigation of such other lands in public or private ownership, as in the opinion of the said Secretary, can be served with water impounded by said dam without diminishing the supply necessary for said Indian lands." Act of June 7, 1924, ch. 288, 43 Stat. 475. The Reservoir is located in the southern portion of the San Carlos Apache reservation. Although the Reservoir is encircled by the Tribe's land,3 its water is designated almost entirely for use by others.4

In the mid-1990s, the water levels in the Reservoir began to drop because of drought. The drought did not show signs of abating and threatened to seriously deplete the Reservoir. After failed efforts to negotiate for commitments that water be retained in the Reservoir, in May 1999, the Tribe filed this suit seeking injunctive relief. The Tribe alleged statutory violations of the Endangered Species Act, 16 U.S.C. § 1531 et seq., the Native American Graves Protection and Repatriation Act, 25 U.S.C. § 3001 et seq., and NHPA, as well as common law nuisance and breach of trust. The district court denied requests for a temporary restraining order and a preliminary injunction and ultimately ruled against the Tribe on all of its claims. San Carlos I, 272 F.Supp.2d at 897.5

ANALYSIS

The NHPA involves "a series of measures designed to encourage preservation

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of sites and structures of historic, architectural, or cultural significance." Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 108 n. 1, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). For example, the Act establishes the National Register of Historic Places and procedures related to listing on the Register. 16 U.S.C. § 470a. Section 106 requires that federal agencies take into account the effect of their undertakings on "any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register."6

Section 106 does not expressly provide that private individuals may sue to enforce its provisions. Nor does the statute specify a remedy for violation of this section. The question is whether the statute creates a private right of action by implication. The government maintains it does not and that the only avenue open to private parties seeking to force government officials to comply with § 106 is to invoke the review procedures set out in the APA, including the requirements for a final order and exhaustion. Because the Tribe has not sought review under the APA, the government argues that the Tribe's NHPA claim must be dismissed. The Tribe urges us to find that § 106 contains a private right of action separate and apart from the APA and that dismissal of its claim under NHPA was error.

Whether § 106 contains a private cause of action is a question not yet addressed by our circuit. In Tyler v. Cisneros, 136 F.3d 603 (9th Cir.1998), we assumed without deciding that NHPA contains a private right of action. Id. at 608 (reversing the district court's holding that NHPA contains an implicit statute of limitations). In other cases where we have reviewed government compliance with NHPA in actions initiated under the APA, the question has not arisen. See, e.g., Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 804 (9th Cir.1999) (reviewing under the APA a tribe's claim that the Forest Service violated NHPA in the course of a land exchange).

It is now well understood that "private rights of action to enforce federal law must be created by Congress." Sandoval, 532 U.S. at 286, 121 S.Ct. 1511. The Court explained that "[t]he judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy." Id. As in Sandoval, we begin our analysis by turning to the provision at issue, § 106.

The language of § 106 is strikingly similar to the language the Supreme Court considered in Sandoval. In Sandoval, the Court's inquiry was whether § 602 of Title VI of the Civil Rights Act of 1964 contained a private right of action. Sandoval, 532 U.S. at 278-79, 121 S.Ct. 1511. Section 601 of the Civil Right Act provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be

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subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. There was no disagreement that § 601 envisioned a private right of action. Sandoval, 532 U.S. at 279-80, 121 S.Ct. 1511 (citing precedents that clearly established that § 601 created a private right of action).

Section 602 authorizes agencies "to effectuate the provisions of [§ 601] . . . by issuing rules, regulations, or orders of general applicability." 42 U.S.C. § 2000d-1. Consideration of § 602 prompted the Supreme Court to clarify that "[s]tatutes that focus on the person regulated rather than the individuals protected create `no implication of an intent to confer rights on a particular class of persons.'" Sandoval, 532 U.S. at 289, 121 S.Ct. 1511 (quoting California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981)). The Court observed that unlike § 601, which protected individuals, § 602 focused not on individuals to be protected, but on regulatory agencies. Id. at 289, 121 S.Ct. 1511. As a result, the Court held that § 602 did not create a private right of action. Id. at 293, 121 S.Ct. 1511.

Section 602 of the Civil Right Act and § 106 of NHPA are similar in a crucial way: they are directives to federal government actors. The thrust of § 106 is not directed to individuals or entities that may be harmed through violation of NHPA's dictates, but rather, like § 602 of the Civil Rights Act, to the persons regulated—the heads of federal agencies. This focus on regulating agencies provides little reason to infer a private right of action.

Sandoval offers a second lesson that weighs against implying a private right of action under § 106. In rejecting the claim that § 602 of the Civil Rights Act contains a private right of action, the Court took note that § 602 provided means by which regulations promulgated under it were to be enforced. 532 U.S. at 289-90, 121 S.Ct. 1511 (describing statutory procedures for enforcing regulations). After describing the enforcement mechanism, the Court concluded that "[t]he express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others." Id. at 290, 121 S.Ct. 1511.

Here, there is an alternate means of ensuring that government officials comply with the dictates of a federal statute: Although not expressly referenced in NHPA, invocation of the APA is a longstanding means to challenge agency action. See, e.g., Glacier Park Found. v. Watt, 663 F.2d 882, 885 (9th Cir.1981) (concluding that "[r]egardless whether a statute implies a private right of action, administrative actions thereunder may be challenged under the APA unless they fall within the limited exceptions of that Act."). Like the Civil Rights Act considered in Sandoval, the APA established a specific mechanism for enforcing statutes like NHPA. The APA provides review for "[a]gency action made...

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67 practice notes
  • Norton v. Beasley, Civil Action 5:17-cv-351-CHB
    • United States
    • U.S. District Court — Eastern District of Kentucky
    • September 30, 2021
    ...seek review under the APA, they have no other recourse to challenge the Keeper's decision. See San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1099 (9th Cir. 2005) (concluding that the NHPA “does not give rise to a ‘private' right of action against the federal government. An aggrie......
  • Friends of Panamint Valley v. Kempthorne, No. CV F 07-0487 LJO TAG.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 24, 2007
    ...express waiver of this immunity by Congress." Block, 461 U.S. at 280, 103 S.Ct. 1811. See also San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1096 (9th Cir.2005) ("Absent a clear waiver, sovereign immunity precludes suit against the United States."). As the Supreme Court explained......
  • Shanks v. Dressel, No. 06-35665.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 27, 2008
    ...106 of the NHPA does not create a private right of action against the federal government. See San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1098-99 (9th Cir.2005). The reasoning of San Carlos has even greater force in suits against private actors, because the NHPA addresses its o......
  • Merced Irrigation Dist. v. Cnty. of Mariposa, CASE NO. 1:12-cv-01645-LJO-SKO
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 4, 2013
    ...394 F.3d 1108, 1110 (9th Cir. 2005) (no private right of action under the WSRA). 15. See San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1097 (9th Cir. 2005) ("A fundamental and oft-quoted principle of environmental law is that there is no private right of action under NEPA." (citi......
  • Request a trial to view additional results
68 cases
  • Norton v. Beasley, Civil Action 5:17-cv-351-CHB
    • United States
    • U.S. District Court — Eastern District of Kentucky
    • September 30, 2021
    ...seek review under the APA, they have no other recourse to challenge the Keeper's decision. See San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1099 (9th Cir. 2005) (concluding that the NHPA “does not give rise to a ‘private' right of action against the federal government. An aggrie......
  • Friends of Panamint Valley v. Kempthorne, No. CV F 07-0487 LJO TAG.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 24, 2007
    ...express waiver of this immunity by Congress." Block, 461 U.S. at 280, 103 S.Ct. 1811. See also San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1096 (9th Cir.2005) ("Absent a clear waiver, sovereign immunity precludes suit against the United States."). As the Supreme Court explained......
  • Shanks v. Dressel, No. 06-35665.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 27, 2008
    ...106 of the NHPA does not create a private right of action against the federal government. See San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1098-99 (9th Cir.2005). The reasoning of San Carlos has even greater force in suits against private actors, because the NHPA addresses its o......
  • Merced Irrigation Dist. v. Cnty. of Mariposa, CASE NO. 1:12-cv-01645-LJO-SKO
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 4, 2013
    ...394 F.3d 1108, 1110 (9th Cir. 2005) (no private right of action under the WSRA). 15. See San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1097 (9th Cir. 2005) ("A fundamental and oft-quoted principle of environmental law is that there is no private right of action under NEPA." (citi......
  • Request a trial to view additional results

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