Case Information
*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT (cid:252)
S AN C ARLOS A T , a federally recognized Indian tribe; V ELASQUEZ S NEEZY , S R .; E LLIOTT T ALGO , S R .; P AUL N OSIE , J R .,
Plaintiffs-Appellants, G ILA R IVER I NDIAN C OMMUNITY ,
Intervenor-Appellee, No. 03-16874 v. (cid:253) D.C. No.
U TATES OF A MERICA ; U NITED CV-99-00255-DCB TATES D EPARTMENT OF THE OPINION I NTERIOR ; S I RRIGATION & D RAINAGE D ISTRICT ; N EIL
M C C ALEB , Director of the Bureau of Indian Affairs; G AIL N ORTON , Secretary of the US Department of the Interior; S TEVEN A. W ILLIAMS , (cid:254) Defendants-Appellees.
Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding Argued and Submitted March 17, 2005—Phoenix, Arizona Filed August 9, 2005 Before: Michael Daly Hawkins, M. Margaret McKeown, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge McKeown COUNSEL Joe P. Sparks and Susan B. Montgomery, Sparks, Tehan & Ryley, Scottsdale, Arizona, 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, Ari- zona, for the intervenor-appellee.
Rodney B. Lewis and John T. Hestand, Chandler, Arizona, for the intervenor-appellee.
OPINION
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 Ari- zona. 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 Preser- vation Act (“NHPA”), 16 U.S.C. §§ 470 et seq. , which Throughout the opinion we refer to the relevant provision of NHPA as it was enumerated in the original Act, rather than by its current section designation in the United States Code. Section 106 is codified at 16 U.S.C. § 470f.
requires that federal agencies “take into account the effect of the[ir] undertaking[s] on any district, site, 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 (2001). The distriсt court dismissed the § 106 claim on the ground that NHPA contains no such private right of action. We agree and affirm.
B ACKGROUND
In 1924, Congress authorized construction of the Coolidge
Dam as a means of providing water to the Pima Indians. Con-
gress 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 suрply
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
In concluding that there was no private right of action, the district court
wrote that “cases in the Ninth Circuit involving NHPA violations . . . rely
on the APA for jurisdiction.”
San Carlos Apache Tribe v. United States
,
In the mid-1990s, the water levels in the Reservoir began
to drop because of drought. The drought did not show signs
of abаting 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 vio-
lations 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 tеmporary restraining order and a preliminary
injunction and ultimately ruled against the Tribe on all of its
claims.
San Carlos I
,
A NALYSIS The NHPA involves “a series of measures designed to
encourage preservation 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 (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 [3] The parties dispute whethеr the Reservoir is properly considered on tribal land. Because this dispute is not relevant to the disposition of the case, we do not address it here. The priority for water usage from the Reservoir is set by a consent
decree that resulted from earlier litigation filed by the United States
against all non-Indian users of Gila River water.
United States v. Gila Val-
ley Irrigation Dist.
,
dismissed the Tribe’s claim under NHPA. The remaining issues are addressed in a separately filed memorandum disposition and discussed at length in the district court’s very thorough opinion, San Carlos I , 272 F. Supp. 2d at 866.
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.”
Section 106 does not expressly provide that private individ- uals may sue to enforce its provisions. Nor does the statute specify a remedy for violation of this sеction. The question is whether the statute creates a private right of action by impli- cation. The government maintains it does not and that the only avenue open to private parties seeking to force govern- ment 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 thе 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 The full text of the provision is as follows: The head of any Federal agency having direct or indireсt jurisdic- tion over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on аny district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on His- toric Preservation established under title II of this Act [16 U.S.C. §§ 470i et seq. ] a reasonable opportunity to comment with regard to such undertaking.
implicit statute of limitations). In other cases where we have
reviewed government compliance with NHPA in actions initi-
ated under the APA, the question has not arisen.
See, e.g.
,
Muckleshoot Indian Tribe v. U.S. Forest Serv.
,
[3]
It is now well understood that “private rights of action
to enforce federal law must be created by Congress.”
Sando-
val
,
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.
Sando-
val
, 532 U.S. at 278-79. 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 subjected to
discrimination under any program or activity receiving Fed-
eral 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 (citing precedents that clearly
established that § 601 created a private right of action).
Section 602 authorizes agencies “to effectuate the pro-
visions 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 (quoting
California v. Sierra Club
,
[5] Section 602 of the Civil Right Act and § 106 of NHPA arе similar in a crucial way: they are directives to federal gov- ernment actors. The thrust of § 106 is not directed to individu- als 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 imply-
ing a private right of aсtion 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 (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.
Here, there is an alternate means of ensuring that gov-
ernment 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
,
by statute and final agency action for which there is no other adequate remedy in a court . . . .” 5 U.S.C. § 704. This avenue is open to “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action.” 5 U.S.C. § 702. Indeed, as then-Judge Breyer explained:
It is difficult to understand why a court would ever
hold that Congress, in enacting a statute that creates
federal obligations, has implicitly created a private
right of action against the
federal
government, for
there is hardly ever any need for Congress to do so.
That is because federal action is nearly always
reviewable for conformity with statutory obligations
without any such ‘private right of action.’
NAACP v. Sec’y of HUD
,
The context of this case—a private party suing the federal
government—is an atypical breeding ground to give birth to
the question whether a statute impliedly creates a right of
action. Whether a federal statute provides a private right of
action almost always arises in the context of a claim against
a third party, such as a state or private entity, not, as here,
against the federal government.
See Sandoval
,
A critical question is whether the federal government is
subject to suit under the statute. Absent a clear waiver, sover-
eign immunity precludes suit against the United States.
Lane
v. Pena
,
To permit a case to proceed directly under a federal statute
and bypass the APA is not without consequence. The APA
includes a series of procedural requirements litigants must ful-
fill before bringing suit in federal court. For instance, the
vate claim for damages against the corporation.
Id.
at 68. Although
Cort
remains viable following
Sandoval
, the context of the claim and the fac-
tors do not inform our analysis here.
See Greene v. Sprint Communica-
tions Co.
,
A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review
thereof. An action in a court of the United States seeking relief
other than money damages and stating a claim that an agency or
an officer or employee thereof acted or failed to act in an official
capacity or under color of legal authority shall not be dismissed
nor relief therein be denied on the ground that it is against the
United States or that the United States is an indispensable party.
challenged agency action must be final. 5 U.S.C. § 704. Also,
a party generally cannot seek court review until all adminis-
trative remedies have been exhausted.
Young v. Reno
, 114
F.3d 879, 881 (9th Cir. 1997). Were litigants able to sue
directly under NHPA, they would be able to sidestep the tra-
ditional requirements of administrative review under the APA
without express Congressional authorization. As Judge Breyer
noted, сreating a direct private action against the federal gov-
ernment makes little sense in light of the administrative
review scheme set out in the APA.
NAACP
,
Both Acts create obligations that are chiefly proce- dural in nature; both have the gоal of generating information about the impact of federal actions on the environment; and both require that the relevant federal agency carefully consider the information produced. That is, both are designed to insure that the agency “stop, look, and listen” before moving ahead.
Pres. Coalition, Inc. v. Pierce , 667 F.2d 851, 859 (9th Cir. 1982). See also Morris County Trust for Historic Pres. v. Pierce , 714 F.2d 271, 278-79 (3rd Cir. 1983).
NEPA “has twin aims. First, it places upon [a federal] agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmak- ing process.” Kern v. U.S. Bureau of Land Mgmt. , 284 F.3d 1062, 1066 (9th Cir. 2002) (citation and internal quotation marks omitted). Just as NHPA requires agencies to take into account the effect of their actions on historic places, NEPA requires agencies to consider the environmental impact of “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Even if the agency does not determine that an action is significant enough to trigger the environmental impact statement requirement, it must at least prepare an environmental assessment explaining its finding that the action will have no significant impact on the environment. 40 C.F.R. § 1501.4.
[9] A fundamental and oft-quoted principle of environmen- tal law is that there is no private right of action under NEPA. See, e.g. , Sierra Club v. Penfold , 857 F.2d 1307, 1315 (9th Cir. 1988) (“NEPA itself authorizes no private right of action.”); Noe v. Metro. Atlanta Rapid Transit Auth. , 644 F.2d 434, 439 (5th Cir. 1981) (“[O]ur research has failed to dis- close anything to suggest a Congressional intent to recognize an implied judicial remedy for an alleged violation of NEPA.”).
[10] The upshot of the NEPA cases is that parties are required to proceed under the APA in order to challenge claimed violations of NEPA. This approach stands in contrast to other environmental statutes, such as the Clean Water Act, or the Endangered Species Act, whose language explicitly provides a private right of action. See Clean Water Act § 505(a), as amended, 33 U.S.C. § 1365(a)(1) (“any citizen may commence a civil action on his own behalf . . . against any person . . . who is alleged to be in violation of” various provisions of the Act); Endangered Species Act of 1973, § 11(g), as amended, 16 U.S.C. § 1540(g) (“any person” mаy “commence a civil suit on his own behalf . . . to enjoin any person, including the United States and any other governmen- tal instrumentality or agency . . . who is alleged to be in viola- tion of any provision of this Act . . . .”). The reason for the distinction among these statutes is
clear. The NEPA “stop, look, and listen” obligation is imposed on the federal government. The obligation to pre- serve species under the Endangered Species Act and to рro- tect the nation’s water under the Clean Water Act are also imposed on private parties. 33 U.S.C. § 1365(a)(1); 16 U.S.C. § 1540(g). Any claim for violation of § 106 obligations under NHPA is against the federal government, not a third party. NHPA’s status as a “look and listen” statute akin to NEPA weighs against implying a private right of action.
[12] Specific comparison of § 106 with the citizen-suit pro- vision of the Endangered Species Act is illuminating. The Endangered Species Act has a citizеn-suit provision that authorizes suit against “any person” for violations of any pro- vision of the Endangered Species Act. 16 U.S.C. § 1540(g)(1)(A). The Supreme Court declined to find that the “any person” language authorized suit against the Secretary of Interior, reasoning that to do so would “effect a wholesale abrogation of the APA’s ‘final agency action’ requirement,” and that “[w]e are loathe to produce such an extraordinary regime withоut the clearest of statutory direction, which is hardly present here.” Bennett v. Spear , 520 U.S. 154, 174 (1997). In contrast, the Court recognized a private right of action against the Secretary under a different provision of the ESA, where the statute expressly authorized suits “against the Secretary.” Id. at 173-74 (interpreting 16 U.S.C. § 1540(g)(1)(C)). As the Court’s reasoning directs, we decline to circumvent the APA to permit a suit against a federal agency absent statutory language permitting such a suit. In concluding that § 106 does not contain a private right of action, we diverge from two of our sister circuits. See Boarhead Corp. v. Erickson , 923 F.2d 1011, 1017 (3rd Cir. 1991); Vieux Carre Prop. Owners, Residents & Assoc., Inc. v. Brown , 875 F.2d 453, 458 (5th Cir. 1989). Both relied on an attorney’s fees provision contained in NHPA. 16 U.S.C. § 470w-4. This provision reads:
In any civil action brought in any United States dis- trict court by any interested person to enforce the provisions of this Act [16 U.S.C. § 470 et seq. ], if such person substantially prevails in such action, the court may award attorneys’ fees, expert witness fees, and other costs of participating in such action, as the court deems reasonable.
16 U.S.C. § 470w-4. The Third Circuit reasoned:
Moreover, since § 305 of the Preservation Act, 16 U.S.C.A. § 470w-4, allows a court to award attor- neys’ fees and other costs “[i]n any civil action brought in any United States district court by any interested person to enforce the provisions of [the Preservation Act], if such person substantially pre- vails in such action,” we agree with the arguments advanced by Boarhead and amici that Congress must have intended to establish a private right of action to interested parties, such as Boarhead, in these situa- tions.
Boarhead , 923 F.2d at 1017. The Fifth Circuit stated that “[r]ather than through APA review, a private right of action against an agency arises under 16 U.S.C. § 470w-4, which provides for NHPA to be enforced ‘in any civil action brought in any U.S. District Court by any interested person.’ ” Vieux Carre Prop. Owners, Residents & Assoc., Inc. , 875 F.2d at 458.
We read the attorney’s fees provision as permitting fees in an action to enforce NHPA. A section providing for recovery of fees does not answer the question whether there is a direct, private right of action against the federal government. The fees provision does not authorize suit against federal agencies nor is it a waiver of sovereign immunity against the United States for a claim under § 106 of NHPA. Instead, such a We address only § 106 of NHPA and take no position on whether there is a private cause of action under any оther section. We do not mean to imply a view one way or the other. We are simply deciding the case before us.
10252
waiver must be predicated in this instance on § 702 of the APA.
Presbyterian Church
,
[14] Thus, we part ways with our sister circuits on the import of the attorney’s fees provision. We agree it dеmon- strates Congressional intent that individuals may sue to enforce NHPA. And we agree that the attorney’s fees lan- guage evinces congressional intent to cover the costs of those who prevail in a suit under the statute. But it does not follow that Congress intended these individuals to file suit against the United States under NHPA itself, rather than under the well-established procedures set out under the APA. At best, the absence of any private right of action language in § 106 and the presence of the fee provision render the statute ambig- uous on the cause of action point. Without explicit language, such an ambiguity can hardly be converted into an implied right of action. We conclude that § 106 does not give rise to a “pri-
vate” right of action against the federal government. An aggrieved party may pursue its remedy under the APA.
AFFIRMED . The Tribe did not plead its claim under the APA nor did it seek to amend its pleadings.