San Carlos Apache Tribe v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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, No. 03-16874

v.

UNITED STATES OF AMERICA; UNITED  D.C. No.

CV-99-00255-DCB

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 US Department of

the Interior; STEVEN A. WILLIAMS,

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

10237

10240 SAN CARLOS APACHE TRIBE v. UNITED STATES

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”),1 16 U.S.C. §§ 470 et seq., which

1

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.

SAN CARLOS APACHE TRIBE v. UNITED STATES 10241

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 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. 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 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

2

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,

272 F. Supp. 2d 860, 885 (D. Ariz. 2003) (“San Carlos I”). We agree with

this result but note a substantive difference. The APA is not a jurisdic-

tional statute. Gallo Cattle Co. v. U.S. Dep’t of Agric., 159 F.3d 1194,

1198 (9th Cir. 1998). Rather, “[j]urisdiction must come from a source

other than the APA.” Confederated Tribes of the Umatilla Indian Reserva-

tion v. Bonneville Power Admin., 342 F.3d 924, 929 (9th Cir. 2003) (not-

ing that the relevant jurisdictional statute was contained in the Bonneville

Power Act) (quoting Pub. Util. Comm’r of Or. v. Bonneville Power

Admin., 767 F.2d 622, 627 (9th Cir. 1985)). Here, jurisdiction is predi-

cated on federal question jurisdiction under 28 U.S.C. § 1331.

10242 SAN CARLOS APACHE TRIBE v. UNITED STATES

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 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 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

[1] 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 whether 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.

4

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., 31 F.3d 1428, 1430 (9th Cir. 1994).

5

The only issue we consider here is whether the district court properly

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.

SAN CARLOS APACHE TRIBE v. UNITED STATES 10243

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 individ-

uals 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 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 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.

[2] 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

6

The full text of the provision is as follows:

The head of any Federal agency having direct or indirect 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 any

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.

10244 SAN CARLOS APACHE TRIBE v. UNITED STATES

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., 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).

[3] It is now well understood that “private rights of action

to enforce federal law must be created by Congress.” Sando-

val, 532 U.S. at 286. The Court explained that “[t]he judicial

task is to interpret the statute Congress has passed to deter-

mine 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. 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).

[4] 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, 451 U.S. 287,

SAN CARLOS APACHE TRIBE v. UNITED STATES 10245

294 (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. As a result,

the Court held that § 602 did not create a private right of

action. Id. at 293.

[5] Section 602 of the Civil Right Act and § 106 of NHPA

are 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 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 (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.

[6] 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, 663 F.2d 882, 885 (9th

Cir. 1981) (concluding that “[r]egardless whether a statute

implies a private right of action, administrative actions there-

under 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 reviewable

10246 SAN CARLOS APACHE TRIBE v. UNITED STATES

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.

[7] 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, 817 F.2d 149, 152 (1st Cir. 1987).

The logic of NAACP resonates in our analysis of § 106. An

aggrieved party can sue under the APA to force compliance

with § 106 without having a “private right of action” under

the statute.

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, 532 U.S. at 278

(private v. state government); Cannon v. Univ. of Chicago,

441 U.S. 677, 680 (1979) (individual v. private entity); Cort

v. Ash, 422 U.S. 66, 68 (1975) (individual v. corporation).7

7

In Cort, the Supreme Court set out four factors to assist in evaluating

whether there is a private cause of action under a statute. 422 U.S. at 78.

The statute at issue was a criminal statute prohibiting corporations from

making certain political contributions. The plaintiff sought to bring a pri-

SAN CARLOS APACHE TRIBE v. UNITED STATES 10247

Even the term “private right of action” is something of a

semantic mismatch in the context of a suit to force agency

action under a federal statute.

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, 518 U.S. 187, 192 (1996). NHPA offers no basis to

infer a waiver of sovereign immunity. Rather, the APA pro-

vides such a waiver. 5 U.S.C. § 702.8 As we have observed,

in enacting the APA “Congress was quite explicit about its

goals of eliminating sovereign immunity as an obstacle in

securing judicial review of the federal official conduct.” Pres-

byterian Church (U.S.A.) v. United States, 870 F.2d 518, 524

(9th Cir. 1989).

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., 340 F.3d 1047, 1052 (9th Cir. 2003) (invoking Cort factors); see

also Office Planning Group, Inc. v. Baraga-Houghton-Keweenaw Child

Dev. Bd., 472 Mich. 479 (Mich. 2005) (laying out opposing views in

majority and dissenting opinions on whether Cort survived Sandoval in

analyzing whether the claim must be brought under the APA).

8

Section 702 reads, in relevant part:

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.

10248 SAN CARLOS APACHE TRIBE v. UNITED STATES

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, creating 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, 817 F.2d at 152.

[8] A close statutory analog to NHPA is the National Envi-

ronmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370.

What § 106 of NHPA does for sites of historical import,

NEPA does for our natural environment. Our circuit has

already noted the parallel:

Both Acts create obligations that are chiefly proce-

dural in nature; both have the goal 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

SAN CARLOS APACHE TRIBE v. UNITED STATES 10249

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” may

“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 . . . .”).

[11] The reason for the distinction among these statutes is

clear. The NEPA “stop, look, and listen” obligation is

10250 SAN CARLOS APACHE TRIBE v. UNITED STATES

imposed on the federal government. The obligation to pre-

serve species under the Endangered Species Act and to pro-

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 citizen-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 without 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.

[13] 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

SAN CARLOS APACHE TRIBE v. UNITED STATES 10251

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.9 Instead, such a

9

We address only § 106 of NHPA and take no position on whether there

is a private cause of action under any other section. We do not mean to

imply a view one way or the other. We are simply deciding the case before

us.

10252 SAN CARLOS APACHE TRIBE v. UNITED STATES

waiver must be predicated in this instance on § 702 of the APA.10

Presbyterian Church, 870 F.2d at 524. Because the APA does

not itself contain a fees provision, in an NHPA suit under

§ 106, a prevailing party may rely on NHPA’s fee authoriza-

tion to obtain attorney’s fees.

[14] Thus, we part ways with our sister circuits on the

import of the attorney’s fees provision. We agree it demon-

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.

[15] 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.

10

The Tribe did not plead its claim under the APA nor did it seek to

amend its pleadings.