The San Carlos Apache Tribe (Tribe) appealed a grant of summary judgment to the United States in a suit the Tribe brought under the National Historic Preservation Act (NHPA)[1] inter alia, to enjoin the release of water from the San Carlos Reservoir in Arizona. The Ninth Circuit affirmed the grant of summary judgment on the basis that the Tribe could not assert a private right of action under section 106 of the NHPA.

The San Carlos Reservoir is surrounded by lands belonging to the Tribe, but a vast majority of the reservoir's waters are used by non-tribal entities. According to the 1924 congressional language authorizing the establishment of the reservoir, the reservoir's waters are intended primarily for use by the Pima Indians. The authorization provides however, that excess water may be used to irrigate "other lands" so long as such use does not "diminish . . . the supply necessary for said Indian lands."[2] Several years of drought during the 1990s caused water levels in the reservoir to drop. Following unfruitful efforts to negotiate for water to be retained in the reservoir, the Tribe filed suit in May 1999 seeking an injunction requiring the maintenance of a set water level.

The Tribe initially brought multiple claims including claims under the Endangered Species Act (ESA)[3] and common law nuisance. The district court ruled against the Tribe on all of its claims and the only issue the Ninth Circuit considered on appeal was whether the district court properly dismissed the Tribe's NHPA claim on the grounds that there is no private right of action under section 106 of the NHPA.

The Ninth Circuit, in considering this issue of first impression, first stated that there was no express private right of action in the language of section 106. The provision requires federal agencies to "take into account the effect of [an] undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register."[4] The court then ruled that there was no implied private right of action in section 106, particularly in light of Alexander v. Sandoval.[5] In Sandoval, the United States Supreme Court indicated that a statute focused on the "person regulated" rather than on the individuals protected by the statute does not imply a private right of action.[6] The Supreme Court determined that there is no private right of action under section 602 of Title VI of the Civil Rights Act of 1964 (Title VI)[7] as compared to section 601[8] under which a private right of action is evident because section 601 is directed towards the individuals it protects.[9] The Court in Sandoval also noted that a private right of action under section 602 appeared to be precluded by the fact that Congress provided express guidelines in section 602 on how to enforce the provision.[10] The Court suggested that express provisions providing enforcement mechanisms serve as a signal that Congress intentionally precluded other methods of enforcement.[11]

The Ninth Circuit drew a parallel between section 602 of Title VI and section 106 of the NHPA because they are both "directives to federal government actors."[12] Given section 106's focus on regulating agencies the court decided that, just as in Sandoval, the provision did not imply a private right of action. The Ninth Circuit further concluded that, just as in Sandoval, a private right of action is precluded as a means of enforcement because there is another expressly provided enforcement mechanism. The court explained that the Administrative Procedure Act (APA)[13] is an express and frequently used mechanism for enforcing the agency requirements under the NHPA and therefore, precludes non-express methods of enforcing agency actions under section 106.

The Ninth Circuit went on to point out that the question of whether an implied private right of action exists in a statute rarely arises in suits against the federal government because there can be no private right of action against the government without a clear waiver of sovereign immunity. The court emphasized that there is a clear waiver of sovereign immunity in the APA,[14] but not in the NHPA. The court then cautioned against bypassing the APA to allow suit directly under the NHPA because doing so would allow a litigant to avoid procedural requirements that Congress deliberately put in place under the APA.[15] To illustrate the inappropriateness of evading the APA the court referred to the case of Bennett v. Spear,[16] in which the Supreme Court refused to abrogate the APA by allowing a private right of action in an ESA provision that did not provide expressly for one. The Supreme Court made clear that it was "loathe to produce such an extraordinary regime without the clearest of statutory direction."[17]

To advance the point that there is no private right of action under section 106 of the NHPA, the Ninth Circuit likened the NHPA to the National Environmental Policy Act (NEPA),[18] which does not provide for private rights of action. [19] According to the Ninth Circuit, the NHPA is akin to NEPA because both are concerned exclusively with the procedures that a federal agency must undertake to ensure that it has fully considered the impacts of its actions. The court reasoned that section 106 of the NHPA, like NEPA, does not create a private right of action because it is not concerned with the actions of private parties. To further clarify, the court contrasted the NHPA and NEPA with environmental statutes that place an obligation on private parties and also expressly provide for private rights of action. The court offered the examples of the Clean Water Act and the ESA and explained that it is logical that these statutes explicitly create private rights of action because they are both concerned with private party impacts.[20]

Finally the Ninth Circuit looked to decisions in the Fifth and Third Circuits that allowed for private rights of action under the NHPA on account of the attorney's fees provision in the statute.[21] The attorney's fees provision states:

In any civil action brought in any United States district court by any interested person to enforce the provisions of this Act, 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.[22]

The Ninth Circuit concluded that the attorney's fees provision does not grant a private right of action directly under the NHPA because the provision does not "authorize suit against federal agencies"[23] or waive sovereign immunity. The Ninth Circuit determined instead that the provision is intended to authorize fees in suits brought directly under the APA in relation to the NHPA because the APA itself contains no such fees provision. According to this formula a private party could sue an agency under the APA to ensure that the agency abides by section 106 of the NHPA and if the party prevailed, the NHPA would provide the party with a statutory basis for collecting attorney's fees where the APA would not.[24]

In summary, the Ninth Circuit upheld the district court's grant of summary judgment against San Carlos Apache Tribe, affirming that there is no implied private right of action under section 106 of the NHPA because the statute 1) is directed exclusively at the federal government, 2) does not expressly waive sovereign immunity and 3) such a private right of action is precluded by the fact that the APA already provides one.