Case 125

Apache Survival Coalition v. United States, 21 F. 3d 895 (9th Cir. 1994).

Proposed construction of an observatory complex on Mount Graham in Arizona, the location of several Native American shrines eligible for the National Register of Historic Places, led the Apache Survival Coalition to sue the United States Forest Service alleging that it did not properly comply with the National Historic Preservation Act (NHPA). Prior to approving the construction project, the Forest Service had prepared an environmental impact statement (EIS) pursuant to the National Environmental Policy Act (NEPA) and initiated the Section 106 review process in accordance with NHPA. The court, however, did not reach the issue of NHPA compliance because it found plaintiffs' claim to be barred by the doctrine of laches.

In NEPA cases, courts generally apply a more lenient standard when determining whether laches should bar a claim. The court found that the lenient standard should also prevail in NHPA cases where, like NEPA, suits are brought in the public interest and to ensure Federal agency compliance. 21 F.3d at 906. In applying the more lenient standard of laches, the court examined whether plaintiffs unduly delayed their suit and whether defendant would be unduly prejudiced if the suit were allowed to go forward. The court identified plaintiffs as representing the interests of the San Carlos Apache Tribe. Any notice to the Tribe, therefore, constituted notice to plaintiffs. The Forest Service had solicited the Apache Tribe's views regarding cultural resources six years before the lawsuit was initiated, but the Tribe did not express concerns over the resources at that time. The Tribe failed to comment on the draft EIS and several years later asked to be taken off the mailing list for the final EIS. Notwithstanding that request, the Forest Service sent the Tribe a final EIS. The Tribe did not comment.

The court decided that the onset of the NHPA review process, rather than the date of permit issuance, was the appropriate date from which to measure laches. Id. at 907. Had the Tribe participated in the NHPA review process, the court pointed out, it could have corrected the deficiencies in the process it now alleged. Id. at 908. In finding unreasonable delay in bringing the suit, the court did note that before filing suit, but after the permit was issued, the Tribe attempted to communicate its views. Specifically, the Tribe expressed its concerns to the University of Arizona, which was working with the Forest Service on the project. Additionally, one year after construction began, the Tribe wrote the Forest Service directly. The Forest Service was willing to consider information on mitigation options, but the Tribe did not respond until another year had elapsed and, at that time, reiterated its earlier concerns without offering mitigation information. Once again, the Forest Service agreed to hear the Tribe's views, but received no response.

The court found that these communications did not preclude a finding of unreasonable delay because the Tribe had ignored the early notifications about the project, failed to sue until more than two years after permit issuance, and ignored Forest Service attempts to respond to Tribal concerns expressed after issuance of the permit. Id. at 909.

Another factor considered by the court in determining inexcusable delay was the scope of the NHPA claim. If the claim included violations of ongoing duties after the permit was issued, the above analysis of delay would not apply. Although plaintiffs' complaint was limited to a challenge of the Forest Service's actions leading up to the permit issuance, plaintiffs raised the issue of defendant's "ongoing obligation" with regard to the project in their opposition to defendants' motion for summary judgment.

The court interpreted the Council's regulations as imposing a continuing duty upon Federal agencies to comply with the Section 106 process when previously unidentified eligible properties are discovered, phased compliance is contemplated, or a modification occurs in the project where the Federal agency still has power to authorize the modification. Id. at 911. According to the court, plaintiffs' allegations in the opposition motion alleged previously unidentified properties with sufficient specificity to expand the scope of the case to the post-permit period. However, because the information on the properties would have been before the Forest Service if the Tribe had not "consistently ignored the NHPA process," the court found it inappropriate to treat the violation of an ongoing duty as separate from the original claim. A contrary finding, the court reasoned, would give a party an incentive to withhold information and not engage in consultation with the hope of getting a second chance to prevent a project by bringing suit based on "new" information. Id. at 912.

With regard to the undue prejudice aspect of laches, the court considered that at the time the complaint was filed 35 percent of construction was complete and $4 million had been expended. By the time the motion for preliminary injunction was filed, expenditures had doubled and delay was estimated at $11,000 per day. The court noted that substantial completion is sometimes insufficient to bar suit, but in this case, the harm plaintiffs feared had become irreversible. Id. at 913. The court explained that NHPA does not mandate that projects be barred in areas where eligible historic properties exist, only that Federal agencies take into account the effect on such properties. Id. Finally, the court determined that the Arizona-Idaho Conservation Act (AICA), which authorized the ultimate construction of the complex, was passed for the very purpose of avoiding more delays. The court found that defendants would be prejudiced by allowing the suit to go forward at this stage.

Plaintiffs made a second argument regarding Forest Service actions, alleging that AICA violates the constitutional principle of separation of powers. Plaintiffs first alleged that by passing AICA, Congress had prescribed a rule of decision without changing the underlying laws. Concluding that Congress had indeed modified the old law by setting new standards and did not direct a particular result under old law, the court rejected plaintiffs' argument. Id. at 902. The court also rejected plaintiffs' allegations that AICA usurped the Forest Service's authority. According to the court, in passing AICA, Congress altered the reach of the law and changed the legal standard but left to the Forest Service the decision as to compliance with the new law.

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