PHOENIX (CN) - Southern Arizona tribes will have another chance to challenge the construction of a transmission line through their ancestral homeland after the Ninth Circuit found the trial judge dismissed it based on the wrong standards.
A three-judge panel found Tuesday that the U.S. Bureau of Land Management's "final agency decision" in approving the 550-mile wind energy transmission line was its 2023 notice to proceed with construction, not the 2015 approval of the route as the defendants argue. So, the plaintiffs' 2024 lawsuit didn't fall outside the six-year window for a National Historic Preservation Act claim.
"Thus, plaintiffs also have plausibly alleged that the department violated the programmatic agreement by authorizing construction before properly identifying all historic properties affected by the project and ensuring that any adverse effects would be avoided, minimized, or mitigated," U.S. Circuit Judge Mark Bennett wrote in a 29-page opinion. "We therefore reverse and remand."
Joined by the Center for Biological Diversity and Archaeology Southwest, the Tohono O'odham and San Carlos Apache tribes sued the Bureau of Land Management in 2024 to halt construction of the SunZia transmission line. The project would be the largest renewable clean energy project in U.S. history, carrying wind energy from New Mexico to California. It would also run right through the historic San Pedro Valley, destroying historic and cultural sites.
The plaintiffs accuse the federal agency of violating the Administrative Procedures Act and the National Historic Preservation Act by incorrectly finding no adverse effects from the impending construction and violating a previous agreement to consult the plaintiffs on a historic property treatment plan.
A federal judge dismissed the claim six months after it was filed, finding the plaintiffs missed the six-year statute of limitations. While the construction was approved to move forward by the 2023 notice to proceed, the bureau considers the 2015 record of decision to be the "final agency decision" that started the clock on the plaintiffs' challenge.
In a Phoenix courtroom in March, plaintiff attorney Elizabeth Lewis accused the bureau of "wielding the statute of limitations like a sword" to fend off legitimate legal challenges. The Ninth Circuit panel unanimously agreed.
"Defendants' counter arguments are unpersuasive," wrote Bennett, a Donald Trump appointee. "Logically, the record of decision could not have marked the consummation of the department's NHPA process; that process was incomplete when the record of decision was issued."
The defendants also argued that the 2015 record of decision was the final action because it finalized the route, which they say is ultimately what the plaintiffs challenge. But Bennett wrote that the defendants mischaracterize the claims against them.
He said the plaintiffs ask not to move the route but only that the route comply with the historic preservation act, reminding that while the record of decision approved a right-of-way for the route, the final construction is still subject to the act's guidelines and therefore couldn't have been set in stone in 2015.
The panel also found the trial judge, U.S. District Judge Jennifer Zipps, relied on her denial of the plaintiffs' motion for preliminary injunction to grant the defendants' motion to dismiss, she incidentally relied on outside documents in her denial that were not to be considered in the dismissal stage. Additionally, her dismissal was based mainly on the erroneous conclusion that the action fell outside the statute of limitations.
Using the correct standards, the panel found the plaintiffs have a plausible claim under the historic preservation act and ordered the Zipps to reconsider a new motion to dismiss.
The parties have not responded to requests for comment.
Source: Courthouse News Service
