Southwest Tribes Urge 9th Circuit to Revive Fight Against Controversial High-Voltage Transmission Line

On Wednesday, a Ninth Circuit panel appeared poised to reverse a lower court’s dismissal regarding the SunZia transmission line. This high-voltage power line, set to be the largest renewable energy project in U.S. history, stretches 550 miles from central New Mexico to Southern Arizona and California. Its route, however, cuts through the San Pedro Valley, a region steeped in history for Indigenous tribes such as the Tohono O’odham, Zuni, Hopi, and Western Apache.

During court proceedings, representatives from these tribes argued that the Bureau of Land Management (BLM) improperly manipulated the statute of limitations to sidestep judicial scrutiny of the agency’s assessment of historic sites in the valley. Attorney Elizabeth Lewis, representing the plaintiffs, expressed concerns that such actions could render the consultation process a mere formality insulated from judicial review.

In 2024, the Tohono O’odham and San Carlos Apache tribes, alongside the Center for Biological Diversity and Archeology Southwest, initiated a lawsuit against the BLM. They accused the federal agency of violating the Administrative Procedures Act and the National Historic Preservation Act by incorrectly asserting that the transmission line would not adversely affect historic sites.

Although the construction of the line received approval in 2023, a federal judge dismissed the case, stating the plaintiffs failed to adhere to the six-year statute of limitations. The BLM argued that the 2015 approval of the route constituted the final decision, requiring any challenge to focus on that date.

Lewis countered that the plaintiffs refrained from litigation in 2015, believing the agency’s agreement with SunZia left room for an alternate route contingent on subsequent consultations. She criticized the BLM for implementing a deferred consultation process designed to conclude only after the Record of Decision (ROD) was issued, thus disadvantaging the tribes during the legal proceedings.

During the hearing, U.S. Circuit Judge Susan P. Graber criticized the BLM’s position, questioning how the 2023 decision could be considered untimely. Bureau attorney Ezekiel Peterson defended the agency’s stance, asserting that the recent approval was merely a continuation of the 2015 programmatic agreement. Despite this, Graber suggested remanding the case to allow the plaintiffs to amend their complaint, which Peterson viewed as a reasonable proposal.

The panel included U.S. Circuit Judges Mark Bennett and Marsha Berzon, indicating a diverse judicial perspective on the case as the discussion unfolded in Phoenix.