Case 66

National Indian Youth Council v. Andrus, 501 F. Supp. 649 (D.N.M. 1980), aff'd, 664 F.2d 220 (10th Cir. 1981).

In 1968, two mining companies and the Navajo tribe entered into a lease for the extraction of coal from Navajo lands. The lease was approved by the Secretary of the Interior the same year. In 1973, the mining companies proposed a coal gasification project on the leasehold. In response, the Bureau of Reclamation of the Department of the Interior conducted environmental studies of the proposed project and ultimately issued an environmental impact statement under the National Environmental Policy Act (NEPA). The mining companies submitted a mining and reclamation plan, which was revised and approved in 1978. Meanwhile, the mining companies, the Advisory Council on Historic Preservation, the State Historic Preservation Officer, and the Department of the Interior entered into a Memorandum of Agreement (MOA) under the Council's regulations implementing Section 106 of the National Historic Preservation Act (NHPA). The MOA, executed in 1978, provided for compliance with Section 106 in phases prior to each new mining activity.

Plaintiffs sought to enjoin the mining activities on grounds that approval of the mining lease in 1968 violated NEPA, NHPA, Executive Order No. 11593, the Historic and Archeological Data Preservation Act (HADPA), and other laws. They argued that NHPA required the Interior Department to inventory and survey all archeological sites on the leasehold prior to approving the lease. The parties to the lawsuit agreed that compliance with NHPA was required but disagreed as to the proper timing for compliance. Defendants' position was that compliance with the historic preservation statutes was not necessary until approval of the final mining plan and that phased compliance was therefore appropriate.

The district court initially rejected plaintiffs' NEPA arguments, finding that the discussion in the environmental impact statement of archeological and paleontological resources in the project area was adequate for the purposes of the statute. 501 F. Supp. at 672-73.

In proceeding to plaintiffs' historic preservation claims, the court noted that the obligations of NHPA and Executive Order No. 11593 are separate and independent from those mandated by NEPA. Compliance with NEPA does not guarantee that there has been compliance with NHPA or Executive Order No. 11593. Id. at 674.

The district court rejected plaintiffs' timing argument, reasoning that to require compliance with the complete process mandated by Section 106 before approval of the lease would be wasteful and unreasonable, since there would be no assurance that the lease would ever be issued. Rather, the court held that, although under the Council's regulations the term "undertaking" includes mining projects entered into pursuant to a federally approved lease, the "license" that triggered Section 106 was the approval of the mining plan, not the lease approval. Id. at 675-76.

Second, the court approved the MOA, which provided for compliance with Section 106 in stages. The Council's regulations recognized that some projects require ongoing or stage-by stage compliance with NHPA. Id. at 676. Because Congress had the opportunity to review the Council's interpretation of Section 106 when it amended NHPA in 1976 and chose not to change it, the court deferred to the Council and held that the Council's interpretation did not violate NHPA. Id. at 678.

Third, the court dismissed plaintiffs' claims that Interior had violated Executive Order No. 11593 because it did not evaluate for National Register eligibility all archeological sites on the leasehold prior to the deadline established in the Executive Order. The court found that the Executive Order was not judicially enforceable because it did not have the force and effect of law, since neither NHPA nor any other law directed the President to issue the order. Therefore, the Executive Order did not create a private cause of action. Rather, the Executive Order was a "managerial tool" for the benefit of the executive branch. Id. at 678-80.

Fourth, the court held that plaintiffs had no cause of action under HADPA. While NHPA is a procedural tool whose function culminates during the planning stage and terminates upon commencement of construction, HADPA is a substantive law whose function is initiated by the beginning of construction on a project and runs coterminous with construction. Until "construction"‹in this case, mining‹began, the statute did not apply. Id. at 680.

The Court of Appeals for the Tenth Circuit affirmed the district court's denial of injunctive relief. Although the Department of the Interior had entered into the MOA before conducting surveys and designating sites under the National Register criteria, and so technically had failed to comply with the timing requirements of Section 800.4(a)(4) of the Council's regulations, this technicality had no substantive effect on the purpose of NHPA‹the protection and preservation of historic sites. The Council and the other parties participating in the MOA had made a good faith effort to comply with NHPA. 664 F.2d at 226-27.

The appellate court also affirmed the district court's determination that the "Federal action" was approval of the mining plan, not approval of the lease, because no mining operations could have occurred and no historic sites could have been affected until the mining plan had been approved. Id. at 228.

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