Sacred ground designations limited by Ninth Circuit

By Alysa Phillips, assistant editor
Published on Wednesday, August 24, 2005 11:03 AM MST

The San Carlos Apache Tribe may face limits in lawsuits aimed at protecting cultural, historical and sacred sites, including the San Carlos Reservoir and Mount Graham.

A three-judge panel from the Ninth Circuit Court of Appeals ruled Aug. 9 that the National Historic Preservation Act (NHPA) doesn't authorize lawsuits against the United States. The law lacks a "private" right of action, they said.

The decision came in response to the San Carlos Apache Tribe's suit of the Interior Department over the operation of the San Carlos Reservoir. The reservoir is located entirely within reservation boundaries, but it serves other tribes.

The tribe wanted levels maintained to protect the environment. The reservoir sits above the tribe's old burial grounds and the former camp of Geronimo.

A federal judge rejected the tribe's claims under the Endangered Species Act and the Native American Graves Protection and Repatriation Act. The only remaining course was through the NHPA, which requires federal agencies to consider historic preservation values when planning their activities.

An agency must identify affected historic properties, evaluate the proposed action's effects and explore ways to avoid or mitigate those effects. The work must occur in consultation with tribes, states and other interested parties.

"The tribe seeks to maintain certain water levels in the San Carlos Reservoir," Circuit Judge Margaret McKeown wrote. "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."

In the mid-1990s, the water levels in the reservoir began to drop because of drought, the appeal filed by the San Carlos Apache Tribe states. 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 May 1999, the tribe filed a suit seeking injunctive relief.

The tribe alleged statutory violations of the Endangered Species Act, the Native American Graves Protection and Repatriation Act and NHPA, as well as common law nuisance and breach of trust. The district court denied requests and ultimately ruled against the tribe, the appeal states.

According to a news story published by Indianz.com, the court's decision doesn't change the government's mandates, but it makes it clear that tribes have to find another source of law in order to bring lawsuits against federal agencies.

In a separate case, the Ninth Circuit held that sacred sites can be protected under government policies.

"Native American sacred sites are entitled to the same protection as the many Judeo-Christian religious sites," the court wrote. The case was appealed to the Supreme Court, but the justices declined to hear it in April 2005.

Contact Alysa Phillips at 428-2560 (ext. 234) or e-mail her at alysa@eacourier.com.

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Comments

10 comment(s)

Ian Mccartney wrote on Sep 17, 2008 4:20 PM:

" I went to this camp in the summer of 05 when they were located in concho. I highly doubt that vallentine is telling the truth because when i went they was plenty of food. I remeber that they made us but on spf 50 sunscreen by the gallons. They provided us with gallons of water a day. I think that denton should have stayed in concho because it was a lot better. Big deal the recruits have no ac or water. what to expect bootcamp to be a vaction? And by the way the dirt isnt going to kill you "

H. Craig Bradley wrote on Apr 18, 2008 5:29 PM:

" The percentage of Americans who recreate in the wild outdoors of our National Forests is shrinking all the time. Today's America is predominately an urban/suburban America. Increasingly, individuals can not part with their IPods, Cell Phones, Laptop Computers and Navigational Aides (GPS). Roughing it outdoors is an experience that fewer and fewer individuals are getting "

Anonymous wrote on Apr 3, 2008 5:06 PM:

" Why not tell these people and organizations how you feel?

Vice Principal Kerry Wilson
Principal Robert Beeman
Superintendent Mark Tregaskes
Safford, Arizona Middle School

734 11Th Street
Safford, AZ 85546
Phone Number: (928) 348-7040

http://az.localschooldirectory.com/schools_info.php/school_id/3495 "

THS Alum 2004 wrote on Mar 20, 2008 4:21 PM:

" I graduated with these guys and it's sad to say that I'm really not that surprised. They're meat heads and are a "few fries short of a happy meal". The authorities did nothing wrong, these people made a dumb choice and will have to deal with the consequences.

P.S. Doug did it. "

blah wrote on Mar 6, 2008 8:29 AM:

" Whatever "

colton wrote on Jan 29, 2008 2:02 PM:

" i think doug grant is innocent an i think you should not charge him for murder "

saline wrote on Jan 29, 2008 2:01 PM:

" hello hello hello hello hello hello "

Michael Jackson wrote on Dec 11, 2007 3:02 PM:

" Why doesn't this newspaper admit that the story reported by Pam Crandall, as related by Jesse MacBeth, in the above article, is a flat out lie??? MacBeth has since admitted that he did not go to Iraq and that he made up all of the stories repeated by Pam Crandall. Please tell the truth. The longer that the Courier stands by these lies the sillier it looks. "

Jesu Christ! wrote on Oct 25, 2007 8:53 PM:

" And the authorities wonder why it is that students have so little respect for authority. If I were this kid (or the kid's mother) I would never look at authority the same way again. "

Daniel Connell wrote on Oct 23, 2007 9:35 AM:

" i am writting to say that this was a harmless prank and just a little fun for these two innocent teenagers. they should have not gotten in that much trouble for just a harmless prank. being a friend to them you wouldnt see it in my view. they were just looking to have fun in safford because there is nothing else to do and jose hernandez should have not been sent to ADJC on his first crime he ever commited. "

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