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.
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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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