San Carlos Apache Tribe v. United States

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 Arizona. 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 Preservation Act (“NHPA”), 16 U.S.C. §§ 470 et seq., which requires that federal agencies “take into account the effect of the[ir] undertaking^] 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 , 121 S.Ct. 1511 , 149 L.Ed.2d 517 (2001). The district court…