Facts
- Ha’Kamwe’ (also known as Cofer Hot Springs) lies within an area held in trust by the U.S. Department of the Interior for the benefit of the Hualapai Indian Tribe (Tribe).
- The site’s natural characteristics support traditional tribal uses, including gathering plants and materials, observing wildlife, and conducting cultural ceremonies.
- Ha’Kamwe’ was identified as a Traditional Cultural Property eligible for listing on the National Register of Historic Places.
- In 2019, the Bureau of Land Management (BLM) approved the first two phases of an exploratory-drilling project seeking lithium in the Ha’Kamwe’ area.
- The lithium company later sought BLM approval for Phase 3, which would include drilling more than 130 exploratory holes near Ha’Kamwe’, with related industrial activity and disturbance.
- BLM initially invited the Tribe to consult regarding Phase 3 and potential effects on tribal cultural resources.
- During its NHPA Section 106 process, BLM later concluded Ha’Kamwe’ would not be affected because the project’s impacts would be temporary; BLM excluded Ha’Kamwe’ from the area of potential effects and did not continue consultation with the Tribe.
- BLM’s environmental assessment nevertheless identified impacts in the Ha’Kamwe’ area, including temporary visual, noise, and vibration effects; temporary disruption to cultural practices; and impacts to wildlife.
- The Tribe sued under the Administrative Procedure Act, challenging BLM’s Phase 3 approval and alleging, among other things, that BLM violated the NHPA by arbitrarily concluding that no historic properties would be affected.
- The Tribe sought emergency injunctive relief to stop Phase 3 drilling while the case proceeded.
Issues
- Whether the Tribe showed a likelihood of success on the merits (or at least serious questions) that BLM’s NHPA determination that Phase 3 would not affect historic properties was arbitrary and capricious under the APA.
- Whether BLM’s exclusion of Ha’Kamwe’ from the NHPA area of potential effects, based on the characterization of impacts as temporary, unlawfully curtailed required tribal consultation.
- Whether the Tribe showed irreparable harm absent an injunction based on interference with Ha’Kamwe’s cultural and ceremonial uses and related environmental conditions (including wildlife observation and access to natural materials).
- Whether the balance of equities and the public interest favored injunctive relief pending further litigation.
Decision
- The court granted injunctive relief preventing Phase 3 exploratory drilling from moving forward while the litigation continued.
- The court found that the Tribe raised serious questions (and made a sufficient merits showing at this early stage) that BLM acted unreasonably under the NHPA when it treated the project’s effects as merely temporary and, on that basis, excluded Ha’Kamwe’ from the area of potential effects and ended consultation.
- The court credited the Tribe’s showing that drilling-related disturbance near Ha’Kamwe’ threatened irreparable injury to tribal cultural and religious practices tied to the site’s natural setting.
- The court concluded that the equities favored preserving the status quo during review because the Tribe’s claimed injuries related to cultural and spiritual practices, while the opposing harms were largely delay- and cost-related.
- The court determined that the public interest favored ensuring lawful decisionmaking and consultation where a Traditional Cultural Property and tribal trust interests are implicated.
Legal Principles
- Under the APA, courts may set aside agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, including failures to follow required procedures.
- NHPA Section 106 requires federal agencies to identify historic properties that may be affected by an undertaking, assess effects, and consult with affected tribes when tribal cultural resources may be impacted.
- An agency’s definition of the area of potential effects must be reasoned and supported by the administrative record; an agency may not avoid Section 106 duties by defining the area so narrowly that plausible effects on a Traditional Cultural Property are excluded.
- “Temporary” visual, noise, vibration, or access-related effects can still matter under the NHPA when they interfere with the qualities and setting that make a Traditional Cultural Property significant or usable for tribal practices.
- Preliminary injunctive relief may issue where a plaintiff shows (1) likelihood of success or serious questions on the merits, (2) likely irreparable harm, (3) a balance of equities in its favor, and (4) that the public interest supports relief.
Conclusion
Hualapai Indian Tribe v. Haaland concerns BLM’s approval of Phase 3 lithium exploration near Ha’Kamwe’, a Tribal Traditional Cultural Property on land held in trust for the Tribe. After BLM treated expected impacts as temporary, excluded Ha’Kamwe’ from the NHPA area of potential effects, and stopped consultation despite acknowledging project impacts in its environmental assessment, the Tribe sued under the APA. The court granted injunctive relief to pause Phase 3, finding serious questions about BLM’s NHPA analysis and consultation decisions, likely irreparable harm to the Tribe’s cultural uses of Ha’Kamwe’, and that the equities and public interest favored maintaining the status quo during litigation.