Case 101



Attakai v. United States, 746 F. Supp. 1395 (D. Ariz. 1990).

Members of the Navajo tribe brought an action against the Department of Interior and the Bureau of Indian Affairs (BIA) to challenge the construction of fences and livestock watering facilities on portions of the Hopi Indian Reservation. Plaintiffs alleged that the construction activities disturbed and destroyed sites of religious, historical, and archeological significance in violation of the National Historic Preservation Act (NHPA), the Historic and Archeological Data Preservation Act (HADPA), the Archaeological Resources Protection Act (ARPA), the National Environmental Policy Act (NEPA) and the Administrative Procedure Act. Plaintiffs also raised the claim, under the First Amendment of the United States Constitution and the American Indian Religious Freedom Act (AIRFA), that construction activities interfered with their ability to practice their religion.

The dispute arose out of the Navajo-Hopi Land Settlement Act which provided for the relocation of members of the Navajo tribe who resided on lands the act had partitioned to the Hopi tribe. Most of the Navajo plaintiffs lived on Hopi lands located near the construction. The construction projects had the approval and cooperation of the Hopi tribe.

The court first addressed the question of whether the members of the Navajo tribe had standing to sue as individuals. It ruled that the Settlement Act broadly barred the right to private actions relating to the Navajo-Hopi dispute and thus found that individual Navajos did not have standing to challenge the denial of permits to graze on the land in question or to challenge the procedures associated with the relocation of the Navajos from the Hopi land. However, the court found that the individuals did have standing to assert their claims that defendants violated Federal statutes given that their interests in preservation of historical, archeological, and cultural artifacts were not necessarily the same as the tribe. The court also found that the Settlement Act did not bar the individuals from alleging a violation of the Free Exercise Clause of the First Amendment in so far as the construction infringed upon the individual's right to use sites of particular significance; plaintiffs did not have standing to assert the claim that the construction denied access to religious sites of significance to the tribe.

In addressing plaintiffs' First Amendment claim, the court relied on the United States Supreme Court decision in Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). Following Lyng, the court found that even though the construction projects would "seriously interfere with" Navajo religious practices, the Free Exercise Clause did not prevent the Government from using the property as it needed. 746 F. Supp. at 1403. As support for its holding, the court cited Lyng's argument that the Government "simply could not operate if it were required to satisfy every citizen's religious needs and desires." Id. (quoting Lyng, 485 U.S. at 452). The court also observed that the construction project at issue involved lands allocated to the Hopi tribe and under the directive of a statutorily mandated restoration and conservation program. Thus, the court did not find that the Government had to consult with plaintiffs to minimize harm to Navajo religious practices.

The court next addressed the claim that the Government's activity violated AIRFA. The court interpreted AIRFA as expressing a policy of protecting American Indians' rights to freely practice their religion, have access to sacred sites, and use sacred objects. According to the court, AIRFA's legislative history indicated that the intent of the law was to ensure that American Indians obtained First Amendment protection, "not to grant them rights in excess of those guarantees." Id. at 1405. Returning to the precedent of the Lyng case, the court stated that the statute did not create a cause of action in Federal court and, therefore, dismissed plaintiffs' claim under AIRFA.

The court, however, did find in favor of plaintiffs with respect to the Section 106 claim under NHPA, granting the motion for a preliminary injunction to enjoin Government construction activities. Under the NHPA claim, plaintiffs alleged that defendants failed to consult with the Advisory Council on Historic Preservation and the State Historic Preservation Officer (SHPO) during the project's planning and implementation. Specifically, plaintiffs asserted that defendants did not fulfill the identification requirements of 36 C.F.R. § 800.4(a)(1) which requires consultation with the SHPO.

Defendants argued that they substantially complied with the Section 106 regulations by conducting a field survey prior to final approval of the project. According to defendants, Section 800.4(a)(2) of the Council's regulations indicates that the purpose of the consultation requirements of 800.4(a)(1) is to determine the need for a survey. 746 F. Supp. at 1407. Because BIA had conducted a survey within and close to the project line, it alleged that it was in substantial compliance. The survey located historic properties and, as a result, the BIA archeologist recommended that portions of the project be moved to avoid any potential effect to the historic properties. The project was subsequently realigned, and BIA found it would have no effect. The archeologist testified that it was standard BIA practice to then send to the SHPO notification of a finding of no effect, but the SHPO had no record of such notification.

The district court found that defendants did not comply with the identification requirements of Section 800.4. According to the court, "the identification of historic properties that may be affected and the determination of the eligibility of these properties for inclusion in the National Register, is of considerable importance . . . ." Id. at 140. Moreover, absent consultation with the SHPO as required by Section 800.4(a)(1), the court found that the agency could have no reasonable basis to determine what further actions, aside from a survey, may be necessary in accordance with the provisions in Section 800.4(a)(2). Id. at 1407. Further, the court found that Section 800.4(b) explicitly requires identification of historic properties in consultation with the SHPO. Id.

The court also rejected defendants' argument that Section 800.3(b) allowed for flexible application of the Council's regulations and, thus, that BIA had substantially complied with the regulations by moving the projects away from the historic properties. Id. Finding that BIA procedures circumvented the consultative process, the court determined that BIA acted "contrary to the letter and spirit of the regulations" and, therefore, did not substantially comply with the regulations. Id. at 1408. The "unilateral determination" of the BIA archeologist to avoid the properties could not substitute for the consultative requirements embodied in Sections 800.4(a)-(c), even when the SHPO testified after the fact that avoidance of the properties may have been proper mitigation. Id. at 1407.

With regard to the Section 106 consultative requirements, plaintiffs also alleged that defendants failed to comply with the regulations because they did not consult with the Navajo tribe. Once again, the court noted that the Section 106 regulatory scheme depended on consultation with relevant persons in order to gather information necessary to identify and evaluate historic properties. Id. at 1408. The court turned to Section 800.1(c)(2)(iii) which addresses Indian tribes' participation in the Section 106 process. Reviewing the regulation, the court determined that it clearly requires an Indian tribe to participate as a consulting party when an undertaking affects tribal land. The present case involved Hopi, not Navajo, land, and BIA had received the Hopi tribe's concurrence in the project. However, the court determined that even though the Navajo tribe's concurrence in any agreement reached was not essential because the undertaking did not involve Navajo land, the Navajo still must be consulted as interested persons as dictated by Section 800.1(c)(2)(iii) in order to obtain adequate information regarding historic properties. Id.

The final argument under NHPA focused on the requirements of Section 110. Plaintiffs alleged that defendants failed to establish a program to inventory historic sites under their ownership or control. Defendants asserted that they did not have to comply with Section 110 with regard to Indian lands because the agency neither owned nor controlled the land. The court agreed with the defendants, finding that the Indian tribes owned and controlled Indian lands even though the Federal Government held the lands in question in trust. Id. at 1409. The court found nothing indicative in Section 110 of NHPA of an intent to apply Section 110 to Indian lands. Thus, the court denied the preliminary injunction with regard to Section 110 compliance.

The court dismissed plaintiffs' remaining arguments under other statutes. It found that the claim under the Historical and Archeological Data Preservation Act, which provides protection to significant data discovered during construction, was inappropriate because plaintiffs did not show that the defendants found, during their construction activities, significant data requiring a survey or further investigation. 746 F. Supp. at 1410. With respect to the ARPA claim, the court found that it was inapplicable to the current case because ARPA applied to purposeful excavation and removal of archeological resources, not inadvertent excavations. In addressing plaintiffs' NEPA claim, the court observed that the Settlement Act mandated restoration of grazing land and provided that no action furthering that law would be deemed a "major Federal action" for purposes of NEPA. Id. at 1412. BIA's construction activities were thus exempted from NEPA compliance.

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