819 F.3d 1084
9th Cir.2016Background
- Canyon de Chelly (on the Navajo Reservation) yielded 303 sets of human remains and funerary objects removed by the Park Service between 1931–1990; most removals occurred without Navajo consent.
- The Monument Act (1931) placed care of prehistoric features with the federal government but left surface title to the Navajo Nation; ARPA (1979) and Antiquities Act govern archeological permits; NAGPRA (1990) requires federal agencies/museums with “possession or control” to inventory and, where culturally affiliated, repatriate remains.
- In the mid‑1990s the Park Service began the NAGPRA inventory for the Canyon de Chelly collection and consulted tribes; the Navajo Nation protested, contending it owned the remains by treaty and demanded immediate return.
- After protracted dispute and informal legal advice from Interior’s solicitors (2010–2011), the Park Service informed Navajo officials it would continue the NAGPRA process; Navajo sued in 2011 seeking injunction and return of the remains.
- The district court dismissed for lack of jurisdiction, finding no final agency action; the Ninth Circuit reversed, holding the Park Service’s decision to apply NAGPRA was a final agency action subject to judicial review and remanding for merits proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Park Service’s decision to apply NAGPRA is a "final agency action" under the APA | Navajo: the decision to apply NAGPRA consummated agency decisionmaking and caused legal consequences (depriving Navajo of asserted possession/control), so APA review is available | Park Service: inventory is ongoing; no consummation or final disposition as to affiliation/return, so no final action | Court: Yes — applying Bennett, the decision to invoke NAGPRA was consummation and produced legal consequences; final agency action exists |
| Whether applying NAGPRA determined Navajo property rights (possession/control) | Navajo: NAGPRA’s invocation reflects an agency determination that it has sufficient legal possession/control, thereby foreclosing Navajo’s treaty-based ownership claims | Park Service: NAGPRA process merely identifies affiliation and does not finally determine superior property rights until completion | Court: Applying NAGPRA necessarily determined at least some legal interests (possession/control) and thus produced legal consequences reviewable now |
| Ripeness / exhaustion: Must Navajo await NAGPRA process completion or administrative exhaustion? | Navajo: waiting imposes irreparable spiritual and cultural harm; the threshold applicability question is legal and fit for review; agency offered no further administrative remedy | Park Service: Navajo can participate or litigate after NAGPRA conclusions; no exhaustion failure or ripeness problem | Court: Review ripe and administrative remedies exhausted — long delay and repeated demands make judicial review appropriate |
| Interpretation of NAGPRA regs on "possession" and "control" (who must comply) | Navajo: treaty, Monument Act, and ARPA give Navajo superior rights, so Park Service lacks legal possession/control for NAGPRA | Park Service: Interior solicitor concluded Park Service had sufficient legal interest to inventory under NAGPRA | Court: Regulations define possession/control to apply to federal agencies; agency’s threshold determination that NAGPRA applies is reviewable |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (establishes two‑part test for final agency action)
- Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586 (agency jurisdictional determination can be final)
- Abbott Labs. v. Gardner, 387 U.S. 136 (ripeness framework: fitness and hardship)
- United States v. Sherwood, 312 U.S. 584 (sovereign immunity and waiver principles)
- Bonnichsen v. United States, 367 F.3d 864 (NAGPRA context precedent cited)
- ONRC Action v. Bureau of Land Mgmt., 150 F.3d 1132 (interlocutory agency acts are not final without formal procedure)
- Hecla Mining Co. v. EPA, 12 F.3d 164 (initiation of regulatory proceedings not final)
- Hale v. Norton, 476 F.3d 694 (agency determination that statute applies not necessarily final)
- FTC v. Standard Oil Co. of Cal., 449 U.S. 232 (final action must impose legal obligation)