FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA (D.C. NO. 5:16-CV-00559-HE)
Kathryn Nagle (Wilson Pipestem and Abi Gain with her on the
briefs), Pipestem Law, P.C., Tulsa, Oklahoma for Appellant.
William R. Norman (K. Kirke Kickingbird and Michael D.
McMahan with him on the brief), Hobbs, Straus, Dean &
Walker, LLP, Oklahoma City, Oklahoma, for Appellees.
TYMKOVICH, Chief Judge, HARTZ, and HOLMES, Circuit Judges.
TYMKOVICH, Chief Judge.
Wichita Tribe has roots in parts of Oklahoma, Kansas, and
Texas. Today, its reservation is located in the northern half
of Caddo County, Oklahoma. To commemorate its history, the
Tribe planned a Tribal History Center on nearby land the
federal government holds in trust for the Wichita Tribe and
two neighboring tribes. One of those neighbors, the Caddo
Nation, claims the land may contain remains of ancestral
the Wichita Tribe began construction, Caddo Nation sued the
Wichita Tribe for allegedly violating the procedures required
by the National Historic Preservation Act (NHPA) and the
National Environmental Policy Act (NEPA) throughout the
planning process. Caddo Nation sought an emergency temporary
restraining order preventing Wichita Tribe from continuing
construction until it complied with those procedures. When
the district court denied that request, Caddo Nation appealed
to this court without seeking further preliminary relief. In
the intervening year while the case was on appeal in this
court, Wichita Tribe completed construction of the History
conclude we have no jurisdiction over this appeal because the
relief Caddo Nation requested from the district court-a
temporary restraining order enjoining construction-is now
moot. We thus grant Wichita Tribe's motion to dismiss
2015, Wichita and affiliated tribes made plans to build a
History Center on a plot of land held by the federal
government in trust for the Wichita Tribe, Delaware Nation,
and Caddo Nation jointly. In Wichita Tribe's eyes, the
History Center would both preserve its history and contribute
to the Tribe's development of the area into a
"destination business site." App. 122.
Tribe accepted funds for this project from the Department of
Housing and Urban Development (HUD). In doing so, Wichita
Tribe agreed to comply with all the statutory and regulatory
requirements that would constrain HUD's own actions.
See 42 U.S.C. § 5304(g); 24 C.F.R. §§
58.2, 58.4, 58.5. These requirements include compliance with
the National Historic Preservation Act and the National
Environmental Policy Act. See 24 C.F.R. §§
National Historic Preservation Act requires federal agencies
to "take into account the effect" of any
"undertaking" on "any historic property."
54 U.S.C.A. § 306108 (2014). An "undertaking"
includes a "project . . . carried out with Federal
financial assistance." 36 C.F.R. § 800.16. In
taking into account a project's effect on historic
property, the agency "shall consult with any Indian
tribe . . . that attaches religious and cultural
significance" to the property. 54 U.S.C.A. §
302706(b). The Advisory Council on Historic Preservation, the
body tasked with issuing regulations implementing the Act,
has issued a slate of regulations regarding what such
consultation requires. See 36 C.F.R. §§
800.2-800.13. According to these regulations, agencies must
provide a tribe with a "reasonable opportunity to
identify its concerns about historic properties, advise on
the identification and evaluation of historic properties,
including those of traditional religious and cultural
importance, articulate its views on the undertaking's
effects on such properties, and participate in the resolution
of adverse effects." 36 C.F.R. § 800.2(c)(2)(ii).
National Environmental Policy Act, in contrast, requires
agencies to study and report on the environmental effects of
"major Federal actions, " see 42 U.S.C.
§ 4332 (C), which include "programs entirely or
partly financed" by an agency, 40 C.F.R. § 1508.18.
As part of this process, agencies must "study, develop,
and describe appropriate alternatives" to the proposed
action. 42 U.S.C. § 4332 (E). If an agency determines
the project will not have a significant impact on the
environment, it must prepare what is known as a "Finding
of No Significant Impact" (FONSI) notice. 24 C.F.R.
§ 58.43(a). According to HUD's regulations for
entities assuming HUD's Environmental Policy Act
obligations, the "responsible entity" must
"[a]s a minimum . . . send the FONSI notice to
individuals and groups known to be interested in the
January 9, 2015, in an attempt to comply with the Historic
Preservation Act's consultation requirement, the Wichita
Tribe sent Caddo Nation a letter explaining its construction
plans and requesting consultation. At the time, Caddo
Nation's leadership was in disarray because of internal