UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT TOHONO O’ODHAM NATION; No. 24-3659 SAN CARLOS APACHE TRIBE; D.C. No. ARCHAEOLOGY SOUTHWEST; 4:24-cv-00034- CENTER FOR BIOLOGICAL JGZ DIVERSITY,

Plaintiffs - Appellants, OPINION

v. UNITED STATES DEPARTMENT OF THE INTERIOR; DEB HAALAND; UNITED STATES BUREAU OF LAND MANAGEMENT,

Defendants - Appellees, SUNZIA TRANSMISSION, LLC,

Intervenor - Defendant - Appellee.

Appeal from the United States District Court for the District of Arizona Jennifer G. Zipps, Chief District Judge, Presiding 2 TOHONO O’ODHAM NATION V. USDOI

Argued and Submitted March 26, 2025 Phoenix, Arizona

Filed May 27, 2025

Before: Susan P. Graber, Marsha S. Berzon, and Mark J. Bennett, Circuit Judges.

Opinion by Judge Bennett

SUMMARY *

National Historic Preservation Act

The panel reversed the district court’s order dismissing for failure to state a claim an action brought by Tohono O’odham Nation and others (“Plaintiffs”) alleging that the Department of the Interior violated the National Historic Preservation Act (“NHPA”) by issuing two limited notices to proceed (“LNTPs”) before satisfying its NHPA obligations. In 2023, the Department issued LNTPs, which authorized SunZia Transmission, LLC to begin construction of a transmission line that runs through the San Pedro Valley. Plaintiffs contended that the Valley is a “historic property” protected under the NHPA.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. TOHONO O’ODHAM NATION V. USDOI 3

As a threshold matter, the panel held that the LNTPs constituted final agency actions because they represent the Department’s final decision that the requirements for a Programmatic Agreement (“PA”), a statutorily authorized negotiated agreement that governs the implementation of the Project, had been satisfied, and that SunZia could therefore begin construction in the San Pedro Valley. Plaintiffs’ NHPA claim, which pertained to the LNTPs, was thus reviewable and timely under the Administrative Procedure Act. The panel held that Plaintiffs plausibly alleged that the Department violated the PA by failing to consult with Plaintiffs on a historic property treatment plan that would evaluate whether the Valley should be designated as a historic property. Accordingly, the panel inferred that a proper consultation would have resulted in the Valley being designated as such. Thus, Plaintiffs also plausibly alleged that the Department violated the PA 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.

COUNSEL Elizabeth L. Lewis (argued) and William S. Eubanks II, Eubanks & Associates PLLC, Washington, D.C.; Howard M. Shanker, Attorney General, Tohono O'odham Nation, Office of the Attorney General, Sells, Arizona; Bernardo M. Velasco, Assistant Attorney General; Alexander B. Ritchie, Attorney General; San Carlos Apache Tribe, Office of the Attorney General, San Carlos, Arizona; for Plaintiffs- Appellants. 4 TOHONO O’ODHAM NATION V. USDOI

Ezekiel A. Peterson (argued), Devon L. McCune, Amber Dutton-Bynum, and Andrew M. Bernie, Attorneys, Environment & Natural Resources Division; Todd Kim, Assistant Attorney General; United States Department of Justice, Washington, D.C.; Michael Smith and Benjamin Vaccaro, Attorneys, Office of the Solicitor, United States Department of the Interior, Washington, D.C.; for Defendants-Appellee