ELR Citation: ELR 20163
No(s). 03-16874 (9th Cir. Aug 9, 2005)

The court holds that §106 of the National Historic Preservation Act (NHPA) does not provide for a private right-of-action against the United States. The case arose after a Native American tribe filed suit against the U.S. government seeking an injunction to maintain water levels in the San Carlos Reservoir in Arizona. Section 106 does not expressly provide that private individuals may sue to enforce its provisions. Nor does it implicitly provide a private right-of-action. And the thrust of §106 is not directed to individuals or entities that may be harmed through violation of NHPA dictates, but rather to the persons regulated—the heads of federal agencies. This focus on regulating agencies provides little reason to infer a private right-of-action. Rather, as with the National Environmental Policy Act, an aggrieved party must pursue its remedy under the Administrative Procedure Act (APA). Consequently, because the tribe has not sought review under the APA, the lower court properly dismissed its NHPA claim. This holding creates a split with the U.S. Courts of Appeals for the Third and Fifth Circuits, which have held that NHPA's attorney fee provision evinces an implied right-of-action.