Southwest tribes ask Ninth Circuit to revive challenge to high voltage transmission line

PHOENIX (CN) — A Ninth Circuit panel appeared likely Wednesday to reverse the dismissal of a challenge to constructing of a high-voltage power line through Indigenous historic and cultural sites.

The SunZia transmission line, approved for construction in 2023, would constitute the largest renewable clean energy project in U.S. history, running wind energy 550 miles from central New Mexico to southern Arizona and California. But directly in its path through central Arizona lies the San Pedro Valley — the ancestral home of the Tohono O’odham, Zuni, Hopi and Western Apache tribes.

Two of those tribes and others told the Ninth Circuit panel Wednesday morning that the Bureau of Land Management manipulated the statute of limitations to avoid judicial review of the agency’s study of the historic and cultural sites throughout the valley.

“If allowed to stand, BLM’s sleight of hand will effectively render deferred consultation a sham by insulating it from judicial review,” attorney Elizabeth Lewis of Eubanks and Associates told the three-judge panel in a Phoenix courtroom.

Joined by the Center for Biological Diversity and Archeology Southwest, the Tohono O’odham and San Carlos Apache tribes sued the Bureau of Land Management in 2024, accusing the federal agency of violating the Administrative Procedures Act and the National Historic Preservation Act by incorrectly finding no adverse effects to historic sites to be caused by the impending transmission line construction.

A federal judge dismissed the claim just six months after it was filed, finding that the plaintiffs missed the six-year statute of limitations. While the construction was approved to move forward in 2023, the Bureau of Land Management considers the 2015 approval of the route to be the “final agency decision,” which therefore must be the subject of the plaintiffs’ challenge.

Representing Archeology Southwest, Lewis explained that the plaintiffs didn’t sue in 2015 because the agency’s programmatic agreement with SunZia included the possibility of an alternate route to be considered based on the results of the agency’s deferred National Historic Preservation Act consultation, which wasn’t completed until much later. Because the agency implied that the route wouldn’t be finalized until consultation was completed, Lewis said, the plaintiffs awaited a more definite decision.

“BLM specifically designed this deferred consultation process to conclude after the ROD but before construction,” she told the panel. “They wielded the statute of limitations like a sword to vanquish the plaintiffs’ claims the moment they became justiciable. This heads I win, tails you lose gamesmanship, which is all too familiar to the tribes, cannot be allowed to stand.”

The judges seemed to agree.

“To be frank, I find your client’s position to be completely puzzling,” U.S. Circuit Judge Susan P. Graber told bureau attorney Ezekiel Peterson. “It’s a new decision. How can you say that’s untimely?”

Peterson said the 2023 construction approval was linked directly to the 2015 programmatic agreement between SunZia and the agency, and didn’t independently “consummate the decision making process.” Because the National Historic Preservation Act consultation found no adverse effects, the route wasn’t to be moved and a new decision wasn’t required.

Peterson conceded that the language in the programmatic agreement implied that the route could still have been moved by 2015, but said it wouldn’t matter because the plaintiffs haven’t properly stated a claim that the agency violated the National Historic Preservation Act by finding no adverse effects.

So that the trial judge can decide whether the plaintiffs have stated a claim, Graber suggested that the panel remand the case to allow the plaintiffs to amend the complaint and avoid the statute of limitations.

“I think that would be appropriate,” Peterson agreed.

U.S. Circuit Judges Mark Bennett, a Donald Trump appointee, and Marsha Berzon, a Bill Clinton appointee, made up the rest of the panel.

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