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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 17, 2003 Decided June 17, 2003
No. 02-5049
CROW CREEK SIOUX TRIBE
APPELLANT
v.
LES BROWNLEE, ACTING SECRETARY OF THE ARMY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv00076)
Peter Capossela, pro hac vice, argued the cause for appel-
lant. With him on the briefs was Marcella Burgess Giles.
Hans Walker was on the brief for amicus curiae The
Three Affiliated Tribes of the Fort Berthold Reservation on
behalf of appellant.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Lisa E. Jones, Attorney, U.S. Department of Justice, ar-
gued the cause for federal appellees. With her on the brief
was Andrew C. Mergen.
Mark Barnett, Attorney General of the State of South
Dakota, and John P. Guhin, Deputy Attorney General, were
on the brief for appellee State of South Dakota.
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: Appellant Crow Creek Sioux
Tribe (Tribe) appeals from a district court order denying a
preliminary injunction of a transfer of lands from the Army
Corps of Engineers (Corps) to the State of South Dakota, as
required by Title VI of the Water Resources Development
Act (WRDA), Pub. L. No. 106–53, 113 Stat. 269 (1999), as
amended by Pub. L. No. 106–541, § 540, 114 Stat. 2572
(2000). The Tribe claims that this title transfer will eviscer-
ate the Secretary of the Army’s ability to enforce federal
cultural protection statutes on the transferred lands, thus
injuring the Tribe’s rights under these statutes. Because the
WRDA explicitly provides that these federal statutes continue
to apply on the transferred lands, we dismiss the Tribe’s
challenge for lack of standing.
I. Background
Throughout the middle of the 20th century, the Corps, in
the course of implementing a federal flood control program
(known as the Pick–Sloan Missouri River Basin Program),
acquired title to large amounts of land along the upper
Missouri River in South Dakota. Some of the Pick–Sloan
lands originally belonged to the Tribe’s reservation. The
Corps is charged with administering the Pick–Sloan lands in
accord with federal environmental and cultural protection
statutes. It is undisputed that the Pick–Sloan lands contain
historic artifacts, cultural objects, and burial remains in which
the Tribe has specified rights under several such statutes.
See Native American Graves Protection and Repatriation Act
(NAGPRA), 25 U.S.C. § 3001 et seq. (2000) (providing notifi-
3
cation and inventory procedures pursuant to which Indian
cultural objects and burial remains unearthed on federal
lands shall be repatriated to the appropriate Indian Tribe);
National Historic Preservation Act (NHPA), 16 U.S.C. § 470
et seq. (2000) (providing notification and consultation proce-
dures federal agencies must follow prior to a federal ‘‘under-
taking’’ to consider the undertaking’s effect on historic prop-
erties); Archaeological Resources Protection Act (ARPA), 16
U.S.C. § 470aa et seq. (2000) (providing criteria and proce-
dures pursuant to which a ‘‘Federal land manager’’ may issue
excavation permits for federal lands; providing for notifica-
tion of Indian Tribe if permits may result in harm to Indian
cultural or religious site).
In 1999, the WRDA was enacted to restore wildlife habitat
destroyed by flooding on the Pick–Sloan lands. Under Title
VI of the WRDA, the Corps is instructed to transfer title to
portions of the Pick–Sloan lands to the State of South Dakota.
WRDA § 605(a). Initially, the Corps was to transfer certain
land and ‘‘recreation areas’’ by January 1, 2002. Id.
§ 605(a)(1)(B). All remaining lands were to be transferred
‘‘not later than 1 year after the full capitalization’’ of a trust
fund to promote wildlife habitat restoration. Id. § 605(e)(2).
Important to this case, the WRDA explicitly provides that,
‘‘notwithstanding any other provision of law,’’ the aforemen-
tioned cultural protection statutes continue to apply to trans-
ferred lands. Id. § 605(h). Moreover, the WRDA also
makes clear that nothing in the Act diminishes or affects ‘‘any
authority of the Secretary [of the Army], the Secretary of the
Interior, or the head of any other federal agency under a law
in effect on the date of enactment of this Act, including,’’
among others, the NHPA, ARPA, NAGPRA, and the Nation-
al Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et
seq. (2000). WRDA § 607(a)(6).
In November 2001, pursuant to NEPA, 42 U.S.C.
§ 4332(2)(C), the Corps released a final Environmental Im-
pact Statement (EIS) analyzing the environmental and cultur-
al effect of the anticipated transfer of land from the Corps to
South Dakota. The EIS considered two alternatives: (1)
Land transfer, as required by the WRDA; and (2) No action.
4
The final EIS concluded that the required land transfer
would have minimal adverse impact on environmental quality
and no adverse impact on Indian cultural resources and
historic properties. Additionally, the EIS included a descrip-
tion of mitigation measures that the State committed to follow
to limit or diminish any impacts of the transfer.
At the same time, the Corps reviewed the transfer pursu-
ant to NHPA Section 106, 16 U.S.C. § 470f, which requires a
federal agency with jurisdiction over a federally approved
‘‘undertaking’’ to consider the effects of the undertaking on
properties included in, or eligible for inclusion in, the National
Register of Historic Places, and requires the agency to afford
the Advisory Council on Historic Preservation (Advisory
Council) and the State Historic Preservation Officer (SHPO)
a reasonable opportunity to comment on the undertaking.
See Nat’l Min. Ass’n v. Fowler, 324 F.3d 752, 755 (D.C. Cir.
2003). After consultation with the Advisory Council and the
SHPO, the Corps determined that the title transfer ‘‘will not
have an effect upon properties eligible for inclusion in the
National Register of Historic Places’’ because the WRDA
provides that the Corps retains authority over transferred
lands.
In response to several comments from the Advisory Coun-
cil, the Corps and the State of South Dakota entered into a
Memorandum of Agreement (MOA), which explicitly provides
for continued federal enforcement of cultural protection stat-
utes on the transferred lands. The MOA states that the
Corps ‘‘will retain, and will exercise, all authority, jurisdiction,
and powers of approval regarding’’ the NHPA, the NAGPRA,
and the ARPA that it held prior to the transfer. In light of
the MOA, on December 14, 2001, the Corps made a second
finding pursuant to NHPA Section 106, determining that the
transfer ‘‘does not constitute an undertaking and therefore
will not have an effect upon properties eligible for inclusion in
the National Register of Historic Places.’’
On December 21, 2001, the Corps issued a Record of
Decision (ROD) providing that the recreation areas would be
transferred on January 1, 2002, in accord with WRDA Section
5
605(a)(1)(B). By this time, the Tribe had filed suit in district
court to enjoin the implementation of WRDA’s title transfer
provisions. In order to allow time for briefing and argument
on the transfer issue, the district court, pursuant to agree-
ment of the parties, ordered South Dakota not to accept title
to the recreation areas until February 8, 2002. On January 4,
2002, the Tribe amended its complaint to seek a preliminary
injunction barring the transfer.
The amended complaint underlying the motion for a pre-
liminary injunction alleges that the WRDA is unconstitution-
ally vague, and that the title transfer violates NEPA, NHPA,
NAGPRA, ARPA, the Administrative Procedure Act, 5 U.S.C.
§ 701 et seq. (2000), and the WRDA itself. In its motion for
a preliminary injunction, the Tribe contends that transfer of
the land to South Dakota would irreparably harm the Tribe’s
interests in cultural artifacts and tribal heritage sites by
removing the lands from coverage under the federal cultural
protection statutes and by lessening the federal government’s
ability to enforce these statutes on the transferred lands.
On February 1, 2001, the district court denied the Tribe’s
request for a preliminary injunction, holding that the pro-
posed title transfer was consistent with the Constitution and
federal law. The district court denied the Tribe’s motion for
a stay pending appeal; we denied the Tribe’s motion for
emergency injunctive relief. As a result, the Corps trans-
ferred title to the recreation areas to South Dakota on
February 8, 2002. The Tribe timely filed this appeal.
II. Analysis
We need not delve into the Tribe’s myriad constitutional
and statutory claims because the Tribe lacks Article III
standing to bring this action in federal court. Article III
limits federal courts’ jurisdiction to ‘‘Cases’’ and ‘‘Controver-
sies.’’ U.S. CONST. art. III, § 2, cl. 1. Standing is one of the
essential prerequisites to jurisdiction under Article III. Lu-
jan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). As the
Supreme Court explained in Lujan, the ‘‘irreducible constitu-
tional minimum of standing contains three elements’’: (1) an
6
‘‘injury in fact—an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical’’; (2) traceability—
that the injury is ‘‘fairly traceable to the challenged action of
the defendant, and not the result of the independent action of
some third party not before the court’’; and (3) redressabili-
ty—that it is ‘‘likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.’’ Id. at
560–61 (internal quotations and citations omitted). The Tribe
has utterly failed to establish an ‘‘actual or imminent’’ injury
in fact, and thus lacks standing. Accordingly, neither we, nor
the district court, have jurisdiction to consider the merits of
its case.
We note at the outset that, contrary to the Tribe’s sugges-
tion, the Tribe does not have standing merely because it has
statutory rights in burial remains and cultural artifacts on the
transferred lands, or because it is affected by the Pick–Sloan
Program as a whole. Rather, to establish standing, the Tribe
must show that the transfer of these lands to South Dakota
causes it to suffer some actual or imminent injury.
The Tribe’s brief, while not entirely clear, offers two relat-
ed versions of the injury it claims to suffer from the land
transfer. First, the Tribe asserts that even though the
WRDA mandates that cultural resource protection statutes
(NAGPRA, NHPA, ARPA) continue to apply on the trans-
ferred lands, the Secretary will not be able to enforce the
cultural protection statutes because those statutes apply only
to lands under federal control or jurisdiction. Consequently,
the Tribe asserts that it will be less likely to receive prompt
repatriation of burial remains and prompt notice of federal
undertakings or federally permitted excavations that may
affect cultural resources, as required by the statutes. Sec-
ond, the Tribe contends that transfer of title to South Dakota
will make it practically impossible for the Secretary to en-
force the cultural protection statutes, particularly because the
Secretary did not reserve easements and proprietary rights
in the Quitclaim Deeds for the transferred lands. We address
these arguments in turn.
7
The Tribe’s first argument is meritless. Of course, the
Tribe is correct insofar that the cultural protection statutes,
by their own terms, apply only to federal lands or federal
undertakings. See NAGPRA, 25 U.S.C. § 3002(a) (providing
that statute covers cultural items discovered on ‘‘Federal
lands’’); § 3003(a) (providing that ‘‘federal agenc[ies]’’ with
‘‘control’’ over Indian remains shall prepare inventory);
NHPA, 16 U.S.C. § 470f (providing that head of ‘‘Federal
agency’’ with jurisdiction over any ‘‘Federal or federally
assisted undertaking’’ must assess effect of undertaking on
historic property and consult the Advisory Council); ARPA,
16 U.S.C. § 470cc(a)-(c) (providing that ‘‘federal land manag-
er’’ [the Secretary] administers excavation permit process for
‘‘public lands’’ and shall notify an Indian tribe if an excavation
permit might result in harm to Indian cultural or religious
site). The WRDA, however, explicitly provides that the
cultural protection laws will continue to apply to the trans-
ferred lands:
Notwithstanding any other provision of law, the following
provisions of law shall apply to land transferred under
this section:
(1) The [NHPA]TTTT
(2) The [ARPA]TTTT
(3) The [NAGPRA]TTTT
WRDA § 605(h). The only fair reading of Section 605(h) is
that these cultural protection statutes will apply on the
transferred lands notwithstanding the fact that the statutes
themselves apply only to federal lands. See Yankton Sioux
Tribe v. United States Army Corps of Eng’rs, 209 F. Supp. 2d
1008, 1018 (D.S.D. 2002) (holding that NAGPRA applies to
lands transferred to South Dakota under WRDA; granting a
preliminary injunction against Secretary for alleged NAG-
PRA violations on these lands). Any other interpretation
would render Section 605(h) a nullity. In effect, Section
605(h) amends the portions of the cultural protection statutes
that limit the statutes’ coverage to federal lands. Or put
another way, the transferred lands will be treated as federal
lands subject to the full force of the cultural protection
8
statutes. Thus, the transfer effects no legal change that
would lessen the protection of the Tribe’s cultural heritage
under federal law.
Furthermore, the land transfer does not alter or impede
the legal authority of the Secretary to enforce the cultural
protection statutes. The WRDA plainly states: ‘‘Nothing in
this title diminishes or affects TTT any authority of the
Secretary [of the Army], the Secretary of the Interior, or the
head of any other federal agency under a law in effect on the
date of enactment of this act, including’’ the NHPA, the
ARPA, and the NAGPRA. § 607(a)(6)(A), (B), (G). Section
607(a), then, erases any doubt that the Secretary lacks legal
authority to enforce cultural protection statutes merely be-
cause the title to the transferred land is now held by South
Dakota. Accordingly, the Tribe’s allegation that it will lose
the protection of NAGPRA, NHPA, and ARPA is without
merit. Legally, nothing changed when the land transfer
occurred, and therefore, the Tribe suffered no injury.
That leaves us with the Tribe’s second argument—that the
Secretary will be practically unable to enforce the cultural
protection statutes after the title transfer (1) because federal
control over the land will diminish as state control increases,
and (2) because the Secretary failed to reserve rights of
access under the Quitclaim Deeds to the land. The Tribe’s
claim that federal enforcement will diminish merely because
South Dakota now holds title to the land is purely speculative.
As explained above, the cultural protection statutes continue
to apply on the transferred lands, and the Secretary retains
full enforcement authority thereunder. The Tribe presents
no reason to believe that enforcement will diminish; it simply
asserts the possibility that the Secretary will be less willing
or less able to enforce federal law if the Corps no longer has
title to the property. This unsupported conjecture does not
constitute injury in fact when the WRDA itself provides that
the Secretary will have an ongoing and undiluted enforcement
role on the transferred lands. See Lujan, 504 U.S. at 560
(stating that injury must be ‘‘actual or imminent, not conjec-
tural or hypothetical’’) (quotations omitted). Moreover, the
MOA confirms the Secretary’s intention and ability to contin-
9
ue enforcing federal cultural protection statutes on the trans-
ferred lands. See MOA, at 2 (‘‘The Corps will retain, and will
exercise, all authority, jurisdiction, and powers of approval
regarding the [NHPA], the [NAGPRA], and the [ARPA] that
it held prior to the mentioned transfer regarding activities
that take place TTT within the transferred lands.’’).
With explicit statutory enforcement authority and a sup-
porting MOA, it is highly questionable that the Secretary
needed to reserve legally enforceable rights in the Quitclaim
Deeds. In any event, the Secretary did so. See Quitclaim
Deeds at 3 (‘‘The Grantor reserves access over, across, on,
and under the Land hereby conveyed TTT to carry out
responsibilities under Section 605(h) of Title VI’’). In addi-
tion, the title transfer was made ‘‘subject to the provisions of
Section 605(h) TTT requiring that certain specified federal
laws be applicable to the lands after transfer to the State.’’
Id. at 4. Thus, the Quitclaim Deeds are no hindrance to the
Secretary’s ability to enforce cultural protection laws.
Finally, even if the Tribe’s predicted harms constituted an
injury in fact, any lack of federal enforcement would be
traceable not to the challenged land transfer, but rather to
the Secretary’s failure to fulfill his continuing statutory duties
under the cultural protection statutes. If the Secretary
neglects his enforcement duties, the Tribe can seek relief
against the Secretary pursuant to those statutes, just as it
could prior to the transfer. Compare Yankton Sioux Tribe v.
U.S. Army Corps of Eng’rs, 209 F. Supp. 2d 1008 (D.S.D.
2002) (requiring Secretary to follow NAGPRA procedures
with respect to certain burial remains discovered on trans-
ferred lands) with Yankton Sioux Tribe v. United States
Army Corps of Eng’rs, 83 F. Supp. 2d 1047 (D.S.D. 2000)
(granting a preliminary injunction against Secretary for al-
leged NAGPRA violations prior to land transfer). Thus, an
order vacating the transfer would not redress any future
injury suffered by the Tribe.
In conclusion, the Tribe has not suffered an injury in fact
stemming from the transfer of lands pursuant to WRDA.
The only harms it alleges are speculative and hypothetical,
10
not actual or imminent. Therefore, the Tribe lacks Article
III standing.
III. Conclusion
For the foregoing reasons, the Tribe lacks standing to
bring this action in federal court. Consequently, we remand
the action to the district court for entry of a judgment of
dismissal for lack of subject matter jurisdiction.
So ordered.