9th Circuit Breathes New Life into Az Tribal Battle Over SunZia Energy Line

Southern Arizona tribes have gained another opportunity to contest the construction of a transmission line on their ancestral land. The Ninth Circuit recently determined that the trial judge improperly dismissed the case, relying on incorrect standards.

On Tuesday, a three-judge panel clarified that the U.S. Bureau of Land Management’s “final agency decision” for the 550-mile wind energy transmission line was the 2023 notice to proceed with construction, not the earlier 2015 route approval as claimed by the defendants. This means the tribes’ 2024 lawsuit does not exceed the six-year statute of limitations for a National Historic Preservation Act claim.

“Plaintiffs have plausibly alleged that the department violated the programmatic agreement by authorizing construction before properly identifying all historic properties affected by the project,” stated U.S. Circuit Judge Mark Bennett in a 29-page opinion. “We therefore reverse and remand.”

The Tohono O’odham and San Carlos Apache tribes, joined by the Center for Biological Diversity and Archaeology Southwest, filed the suit in 2024 to halt construction of the SunZia transmission line. This project is set to be the largest renewable energy initiative in U.S. history, channeling wind energy from New Mexico into California while traversing the historically rich San Pedro Valley, which is home to numerous cultural sites.

The plaintiffs accuse the Bureau of Land Management of violating both the Administrative Procedures Act and the National Historic Preservation Act by erroneously declaring no adverse effects from the construction and neglecting to consult the tribes on an historic property treatment plan.

Six months into the case, a federal judge dismissed the claim, asserting that the plaintiffs had exceeded the six-year limitation period. The Bureau maintained that the 2015 decision was the “final agency decision” that would start the clock on any legal challenge.

During a March hearing in Phoenix, attorney Elizabeth Lewis represented the plaintiffs, claiming that the Bureau was using the statute of limitations as a defensive tool against legitimate legal challenges. The Ninth Circuit panel unanimously agreed with this perspective.

Bennett, a Donald Trump appointee, stated, “Defendants’ counterarguments are unpersuasive. 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.”

In their defense, the defendants claimed that the 2015 decision finalized the route, which they argue is the core issue challenged by the plaintiffs. However, Bennett clarified that the plaintiffs are not asking for a route change; they seek compliance with the historic preservation act. He reminded that while the decision approved the right-of-way, the final construction remains subject to NHPA guidelines and was, therefore, not finalized in 2015.

The panel observed that the trial judge, U.S. District Judge Jennifer Zipps, relied on her denial of the plaintiffs’ motion for a preliminary injunction to dismiss the defendants’ motion, inadvertently considering documents not appropriate for the dismissal stage. Her conclusion that the action fell outside the statute of limitations was primarily incorrect.

With the clarified legal standards, the panel found that the plaintiffs have a plausible claim under the historic preservation act, instructing Judge Zipps to reconsider a new motion to dismiss. As of now, no comments from the parties involved have been received.