F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

N A V A J O N A T I O N , Plaintiff-Appellant

,

v

.

U.S. D E P A R

T M E N T O F T H E I

N T E R I O R ; K E N N E T H L E E S A L

A Z A R , in his official capacity

as Secretary

of the USDOI ; N A T I O N

A L P A R K S E R V I C E ; J O N A T H A N B

. J A R

V I S , in his official capacity as Director of the National Park Service; T O M O. C L A R K , in his official capacity

as Park Superintendent, Cany on de Chelly National Monument,

Defendants-Appellees

. N o. 13-15710

D.C. No. 3:11-cv-08205- PGR

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na Paul G. Rosenblatt, Senior District J udg e, Presiding

Arg ued and Submitted J une 10, 2015—San F rancisco, California

F iled April 6, 2016

B efore: Mary

M. Schroeder, Sandra S. I kuta, and Morg an Christen, Circuit J udg es.N A V A J O N A T I O N V

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Opinion by J u d g e Christen; Dissent by

J udg e I k uta

SUMMARY *

Native Am erican G raves P r otection and

Repatriation Act

The panel reversed the distric t c o u rt’s dismissal of the Navajo N a t i on’s suit seeking a n injunction ending the National Park Service’s inventory

, pursuant to the Native A m e r i c a n G r a v e s P r o t e ct i o n a n d R epatriation A ct (“NAGPRA”), o f human remains and funerary objects removed f

rom the Cany on de Chelly National Monument on the Navajo Reservation; and the immediate retur n of the objects taken from the reservation.

The panel held that the district court had jurisdicti o n to consider the Navajo Nation’s claims because the Park Service’s decision to inventory the r emains and o bjects was

a f i n a l ag ency action w ithin the meaning o f the A d m i nistrative Procedure Act. The panel a lso held that b y d e c iding to u ndertake NAGPRA’s inventory process , t h e P a r k Service conclusively decided that it, and n ot the Navajo Nation, had the presen t r i g ht to “ p ossession and control” o f the r e m a i n s a n d objects. 25 U.S.C. § 3003(a). The panel remanded for further proceeding s.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.N A V A J O N A T I O N V

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J udg e I kuta dissented because she would h o l d that because there was n o f

i n a l ag ency a ction reviewable under § 704 of the A dministrative Procedure Act, the U nited States has not waived its sovereig n immunity and the c ourt lacks jurisdiction to hear the appeal.

COUNSEL

Paul Spruhan ( arg ued), Assistant Attorney General; Harrison Tsosie, Attorney General, Navajo Nation D e p artment o f J ustice, W indo w R o c k

, Ariz ona; Paul E

. F ry e and W illiam Greg ory Kell y , F ry e L aw F irm, Albuquerque, New Mex ico, for Plaintiff-Appellant.

Mary Gabrielle Sprag ue (arg ued); Robe rt G. Deher, A cting Assistant Attorney General; David C. Sh i l t o n; Andrew C. Merg en, United States Department of J ustice

, Environment & Natural Resources Division, W a s hing ton, D .C., for Defendants-Appellees.N A V A J O N A T I O N V

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OP INION

CHRI STEN, Circuit J udg e:

T he N avajo N ation appeals the district court’s dismis s al of its suit seeking immed iate r eturn of human remains a nd associated funerary objects taken from its rese r v a t ion. The Nation describes these r e mains and o bjects as “among the

m ost sacred of [ its] property ” due to its deep spiritual b e l i e f that u pon death humans should be placed in the earth and left there undisturbed.

B e tween 1931 and 1990, the National Park Service removed 3 03 sets o f h uman remains and associated funerary objects from Cany on de Chelly National Monument, a sacred site on the Navajo Reservation. I n the mid-1990s, t h e P a r k Service decided to inventory the remains and objects pursuant to the Native American Graves Protection and Repatriation Act (NAGPRA) with the ultimate g oal of rep at r iating the remains a

nd objects to culturally -affil i a t e d tribes. The Navajo Nation sued seeking

, inter alia

, a n injunction e nding the inventory

process and returning

the remains and objects. The Navajo Nation arg ued that the Park Service’s decision to inventory the remains and objects instead of returning them violated N avajo tribal treaties, various statutes, a nd the F ifth Amendment to the United States C onstitution. The district
court dismissed the suit a s barred b y sovereign i mmunity

, reasoning that t h e P a r k Service had not y et taken any final
ag ency action a s to its disposition o f the r emains and o bjects.

W e have jurisdiction pu r s u ant to 28 U.S.C. § 1 291, a nd

we r e v e r s e the district c ourt’s judg ment. W e hold that the district court had jurisdiction to consider the Navajo Nation’s claims because the Park Service’s decision to inventory t h eN A V A J O N A T I O N V

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remains and objects was a final ag ency ac t i o n within the meaning of the Admini s t r at i ve Procedure Act. B y deciding
to u ndertake NAGPRA’s inventory p rocess, the Park Service

co n clusively decided that it, and not the Navajo N ation, has
t h e p resent rig ht to “possession and c ontrol” of the rema i n s and objects. 2 5 U.S.C

. § 3003(a). W e reverse the district court’s order and remand for proceeding s consistent with this decision.

BACK G ROUND

Cany on de Chelly

is a spectacularly beautiful g eolog ical

s i t e co nsisting of over twenty miles o f red sandstone walls rising h undreds of feet above the g r ound. See S. Rep. N o. 71- 1395, at 2 (1931); F ig . 1.

F ig ure 1 1

1 Pla ces Reflectin g America ’s Diverse Cu l tu res , Nat’ l P ark Se r v

. , h t t p : / / www. n p s

. g o v / n r / t r a v e l / c u l t u r a l

_ d i v e r s i t y / C a n y o n

_ d e

_ C h e l l y

_ Natio n al_ Mo n

u m en t.h tm l (last v isited

Mar. 8 , 2 0 1 6 ).N A V A J O N A T I O N V

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Humans h ave lived in the cany o n’s caves fo r t housands o f
y ears. 2 H o p i a

nd Pueblo I ndians were the cany on’s primary occupants from roug hly 7 50 A.D. until the 1600s

. 3 The Navajo beg a

n living in the cany on in sig nificant n u mbers

aro und the late 1600s. Id. Navajo live in the cany on to this day and consider Cany on de Chelly sacred g round. 4 Navajo creation stories include events in the cany on, and Navajo lore maintains t h a t key spiritual fig u res still reside there. See Kelli Carmean, Spider Woman W alks This L and: T r aditional Cultural Properties and the Navajo N ation x , x vii–x x (2002).

I n 1849, the United States and the Navajo Nation sig n ed

a treaty acknowledg in g that the N avajo Nation was “ under the ex clusive jurisdiction and protection of the g overnment o f the said United States.” Treaty B etween the United States o f America and the Navajo Tribe o f I ndians, U.S.-Navajo Nation, September 9, 1849, 9 Stat. 974, 974. B ut in 1864 the federal g o vernment forcefully and vio l ently removed the Navajo from their lands, including Cany o n d e Chelly

, a nd relocated them to F o rt Sumner, 300 mile s a w a y

. 5 Navajo villag es and food stores were destroy ed d u r ing the forced

move and hundreds of Navajo died a s a r e sult of this forced

2 S ee Ca n yo n d e Ch elly - Histo ry an d C u ltu re , Nat’ l Park Se rv ., h ttp ://w w w .n p s .g ov / cach / le a

r n / h i s t o r y c u ltu re/in d ex .h t m (last v isited Mar. 8 , 2 0 1 6 ).

3 Nat’ l P ark

Serv
., su p ra n o t e 1

.

4 Dav id M. B ru g g e & Ray

m o n d W ilso n , Ad

min i stra tive Histo ry: Ca n

yo n d e C h e lly Na tio n a l Mo n u men t Arizo n a , U .S. Dep ’ t o f t h e In terio r Nat’ l P ark S erv

. (J an

. 1 9 7 6 ), h ttp ://w w w .n p s .g ov /cach /learn /h isto ry cu ltu re/u p lo ad /CA CH_ ad h i.p d f

5 Nat’ l P ark

Serv
., su p ra n o t e 1

.N A V A J O N A T I O N V

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relocat i o n. Kristen A. Carpenter e t al., In Defense of Property
, 118 Yale L .J

. 1022, 1 063 (2009)

. After f our y ears of ex ile, the federal g overnment allowed the N avajo to return to Cany on de Chelly

, id.

, a n d i n 1 8 68 the United States a nd the Navajo Nation sig n ed a second treaty ceasing hostilit ies and establishing

, amon g o ther thing s, the boundaries of the Navajo Reservation, which include a ll of Cany on de Chelly

. Treaty B etween the United States of America and the Navajo Tribe of I ndians, U.S.-Navajo Nation, J une 1, 1868, 15 Stat. 667, 668. U nder this treaty , the Navajo Reservation was “set apart f or the e x clusive use and occupation of the I ndians.” Id. at 671.

I n 1906, C o n gress passed the Antiquities Act, which authoriz ed the President to e stablish national monuments in order to protect historic and scientifically sig nificant sites. See 54 U.S.C. §§ 320101–320303. I t also a uthoriz ed the Secretaries of the I nterior, A g riculture

, and W ar to g rant permits “for the ex amination of ruins, the ex cavation o f archaeologi cal sites, and the g athering of objects o f antiquity .” Id. § 320302. The Department of I nterior’s
reg ulations implementing the A ntiquities A c t d o n o t treat tribal trust lands differently than other f ederal land and do not provide any

rig hts to individual I ndians or tribes concerning the c ollection or d i s position of artifacts or human remains. See 43 C.F .R. §§ 3.1–3.17. All c o l l e ctions made under the authority of the Antiquities Act must be kept in public museums or national depositories. Id. § 3.17.

I n 1931, after receiving consent from the N av a j o Tribal Counci l

, the federal g overnment created a national monument

a t C a n y on de Chelly

. 16 U.S.C. § 445. The monume n t encompasses Cany on de Chelly

, two nei gh b oring cany ons, and lands a d

j a c e nt to the c any ons. Id. The act creating theN A V A J O N A T I O N V

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monument (the Monument Act) specified that the Nava jo Nation retained title to the lands within the monument, but it charg ed the federal g overnment with the “care, maintenance, preservation a

nd restoration of the prehistoric ruins, o r other features o f scientific or historical interest” in the monument. Id. §§ 445a–445b. Cany on de Chelly National Monument is the only national monument located on land not owned b y the federal g o vernment. 6 After the monument’s creat i o n , the feder a l g overnment removed certain human remains a nd associated c ultural objects f ro m t he monument without the
consent of the Navajo Nation. The National Park Service hold s a t least 303 sets of these r e mains and o b jects in its collection a t the W estern Archeolog y Conservation Center in Tucson, Ariz o na.

I n 1979, Cong ress p assed th e Ar chaeolog ical Resources Pr o t ec t i o n A c t ( A R P A )

, w h i c h e s t a b l i s h e d p ermit requirements for removing archaeolog i cal resources from public and I ndian lands. 16 U.S.C. § 470cc. U nlike the Antiquities Act, ARPA clearly disting u ishes between “ public lands” a n d “I ndian lands” held in trust by the federal
g overnment. See id. § 470bb(3)–(4). Under ARPA, a p ermit authoriz ing ex cavation o r r e moval of archaeolog ical

resources located on I n d i a n land requires the consent o f the
t r i b e, and tribes are not required to obtain a permit to

ex c a vate or remove archaeolog ical resources on their I ndian lands. I d. § 470cc(g ). ARPA’s implementing reg ulations provide that “[ a] rchaeolog ical resources ex cavated o r removed from I ndian lands remain the property of the I ndian

or I ndian tribe having rig ht s o f o wnership over such resources,” while “[ a] rchae o l og ical resources ex cavated o r removed from the publi c lands remain the property of the

6 S ee B ru g g e & W ilso n , su

pra n o te 4

.N A V A J O N A T I O N V

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United States.” 43 C.F .R. § 7.13(a)–(b). ARPA requires an
ag ency t o n o t ify I ndian tribes of possible harm to o r destruction of sites the tribe may consider to have relig ious o r cultural importance. Id. § 470cc(c). F urther, ARPA g ives the Secretary of the I nterior authority to “promulg ate reg ulations providing for

. . . the u ltimate disposition” of “archaeolog ical

resources removed from public lands and I ndian lands” a nd provides that the “ultimate disposition under such reg ulation of a rchaeolog ical resources ex cavated or removed from I ndian lands shall be subject to the c o nsent of the I ndi a n o r I ndian tribe which owns or has jurisdiction over such lands.” 16 U.S.C. § 470dd.

I t is uncontested that 297 of the 303 sets of remains a nd objects were removed without the Nation’s c o n s e n t , but the complaint alleg es that in t h e 1 980s the Navajo Nation consented to the Park Service’s disinterment of s i x s e ts o f remains from g rave sites being eroded, on the condition that they be reinterred immediately

. 7 I nstead, according t o t h e complaint, the Park Service took the remains and a dded them
to its collection at the Western Archeolog y C o n s e rvation Center in Tucson, Ariz ona.

I n 1990, Cong r e s s enacted the Native American Graves Protection and Repatriation A ct (NAGPRA). See 25 U.S.C. §§ 3001–3013. Section 3003 of NAGPRA states:

Each F ederal ag ency a

n d each museum which has possession or control over ho l d i n g s o r

7 T h e P ark Serv i ce d en i es th at it a g r e e d t o im m ed iately rein t er th e

rem ain s . B u t in

rev iew in g th e d istrict co u rt’ s o rd er g ran tin g a m otio n to d ism iss, w e accep t th e co m p lain t ’ s alleg atio n s as tru e. See Bill v. Brewer
, 7 9 9 F.3 d 1 2 9 5 , 1 2 9 9 (9 th Cir. 2 0 1 5 ).N A V A J O N A T I O N V

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colle c tions of Native American human remains and a ssociated funerary objects shall compile an inventory of such items a nd, to the

e x t e n t p o s s i b l e b ased on i n f o r m a t i o n possessed by such museum or F ederal ag ency , id en t i f y the g eog raphical and cultural affiliation of such item.

25 U.S.C. § 3003( a )

. 8 The inventory must include a description of each set o f items, the g eog raphical and cultural affiliation o f the items, information reg arding the acquisition and accession of the items, a nd a summary of the evidence used to determine the cultural affiliation of the items. 43 C.F .R. § 10.9(a), (c). “The purpose of the inventory is to facilitate r epatriation by

. . . e stablishi n g the cultural affiliation between these o bjects and p resent-day I ndian tribes

. . . . ” I d

. § 10.9(a). T o that e nd, in creating the inventory

, t he ag ency must consult with any tribes likely to be
g eog raphically or c ulturally affiliated wi t h the items. 25 U.S.C. § 3003(b); 43 C.F .R. § 10.9(b )

. T he consultation
process is a tribe’s opportunity to voic e i t s r easons for seekin g r e p atriation of the items. See 43 C.F .R. § 10.9(b)–(c). I f the inventory process e stablishes a n item’s “known lineal descendant” o r “cultural affiliation” with an I ndian tribe, then the ag e ncy must “ex peditiously return” the item upon request. 25 U.S.C. § 3005(a)(1).

B e fore NAGPRA’s enactment, the Secretary of t h e I nterior did n ot promulg ate reg ulations providin g f or the ultimate disposition of any r e s o urces ex cavated or removed pursuant to ARPA. See Archaeolog ical Resources Protection

8 A sep arate p ro v isio n g o v ern s th e disp o sitio n o f item s ex cav ated or d isco v ered af

ter NA GP RA ’ s en actm en t. S ee 2 5 U.S.C. § 3 0 0 2

.N A V A J O N A T I O N V

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Act of 1979; F inal Uniform Reg ulations, 49 F ed. Reg

. 1,016, 1,032 (J an. 6, 1984). After Cong ress passed NAGPRA, the Secretary promulgated reg ulations providing that N AGPRA
g overns the ultimate di s p o s i tion of any remains a nd items covered b y both NAGPRA and ARPA. See 43 C.F .R. § 7.3(a)(6) (“F or the disposition f ollowing lawful removal o r

ex c a vations o f Native American human remains and ‘cultural items’, as defined by [ NAGPRA]
, the F ederal land manag er is referred to N AGPRA and its implementing reg ulations.”); Id. § 7.13(e) ( “[ T] h e F ederal land manag er w ill follow the procedures requir e d b y NAGPRA and its implementing
reg ulations f

or determining the disposition o f Native A m erican h uman remains and o ther ‘cultural items’, as defined by NAGPRA, that have been ex cavated, removed, o r discovered on public lands.”).

I n the mid-1990s, the Park Service beg an the NAG P R A inventory process for the remains an d o b j e cts it removed from Cany on de Chelly National Monument. As part of this
process, the Park Service beg an consul t i n g w ith the Navajo Nation and the Hopi and Z uni Pueblos. 9 Shortly thereafter, in J une 1 9 9 6
, the Navajo N ation sent a letter to the Sup e r i n tendent o f Cany on de Chelly National Monument asserting that it owned “all human remains and associated funerary objects w ithin the National Monument,” a n d objecting to the inventory p rocess. The Park Service replied by letter stating that it w ould “handle all

. . . req u e s ts for

re patriation in strict accordance with the N AGPRA” a nd

9 T h e N a v a

j o d i d n o t p o p u l ate t

h e Can y on d e Ch elly reg io n in sig n if ican t n u m b ers u n til aro u n d 1 7 0 0

. Bef o re th en , p red ecesso rs to th e

m o d ern Ho p i an d P u eb lo o ccu p ied t h e reg io n

. Nat’ l P ark Serv
., su p ra

n o te 1

.N A V A J O N A T I O N V

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encourag ing the Navajo Nation to participate in the inventory
process.

The Navajo Nation participated, b u t it did so under
pro test. 1 0 Althoug h the record is sparse, it shows that the Navajo Nation eng ag ed in ong o ing dialog u e with the Park Service r eg arding the Nation’s object i ons to the N AGPRA
process a n d c laims of ownership, a nd in 2007 the Park Service withdrew a draft inventory

. Due to the c o n t i n uing disag reement bet ween the Park Service and the Navajo Nation, the Department of the I nterior, of which the Park Service is a bureau, soug

ht an opinion from its Office of the Solicitor. I n an April 2010 email, the Park Service informed the Navajo Nation that I nterior’s solicitor d e t e rmined the Park Service “must comply w ith NAGPRA” and c ontinue to inventory the remains and o b j e c t s taken from Cany on de C h e l ly National Monument. I n a J une 2011 invent o r y consultation meeting between the Park S e r v ice and v arious tribes, the Park Service restated the dete rmination made b y I nterior’s solicitor that the Park Service must “do NAGPRA

on Cany on de Chelly cultural resources.” The Navajo Nation asked for a copy of the opin i o n , b ut the Park Service responded that I

nterior’s solicitor “did not supply an official opinion,” the opinion w as “informa l l y g iven,” and I nterior would not issue any more opinions o n t h e subject. The Navajo Nation sent a letter to the Park Service on Aug ust 9, 2011, stating its intent to sue if the Park Service did not cease the inventory process and immediately return the remains a nd objects. The Park Service r esponded with a letter, sig ned b y

10 T h e Nav aj o co n tin

u ed to seek t h e i m m e d iate retu rn o f th e ob j ects

co n sisten t w ith th eir b elief th at ex h u m atio n “ cau s es illn ess[,]

. . . d am ag es

cro p s, n atu ral eco s y s t e m s an d t h e en v iro n m en t, an d d isru p ts lo cal an d
g lo b al w eath er p attern s.”N A V A J O N A T I O N V

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the Superintendent of Cany on de Chelly N ational Monument, that cited the same o p i n ion from I n terior’s solicitor a nd reiterated the position that the Park Service was “required b y law to complete the NAGPR A p r o cess for cultural items

ex c a vated or removed from lands within” Cany o n de Chelly National Monument. B y the time this letter was received, the inventory process had been ong oing for approx imately fifteen
y ears.

I n December 2011, the Navajo N ation sued the Pa r k Service. The complaint alleg ed that the Park Sevice’s r efusal
to immediately return the remains a n d objects v i o l a ted the Treaty of 1849, the T reaty o f 1868, NAGPRA, A RPA, the Administrative Pr o c edure Act (APA), and the F ifth Amendment to the United States Constitution

. The district

co u r t r u led that there had been no final ag ency action under the APA, and it dismissed the suit as barred by sovereig n immunity . The Navajo Nation appealed.

STANDARD OF REVIEW

This court reviews d e novo a district court’s d ismissal for lack of subject matter jurisdiction. Native Vill. of Kivalina v

. ExxonMobil Corp. , 696 F .3d 849, 855 (9th Cir. 2012).

D ISCUSSION

“The United States, a s sovere i gn , is immune from suit

save as it consents to be sued, and the terms of its c onsent to be sued in a

ny c o u rt define that court’s jurisdiction to entertain the suit.” United States v. Sherwood

, 312 U.S. 584, 586 (1941) (citations o m i t t e d )

. T h e A d m i n istrative Procedure Act (APA) creates a c omprehensive remedial scheme for those alleg edly harmed by ag ency a ction. Se e 5 U .S.C.N A V A J O N A T I O N V

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§§ 701–706. Section 702 of the APA waives sovereig n immunit y for suits alleg ing wrong ful ag e ncy a ction o r inaction. Id. § 702. I t states:

A person suffering leg al wrong because o f
ag ency action, or adverse l y affected o r ag g r ieved by a g ency acti o n within the meaning of a relevant statu t e , is entitled to j u d i cial review thereof. An action in a cour t of the United States s e e k ing relief other than

mo n e y damag es and stating a claim that an ag ency or an officer o r employ ee thereof acted or failed to act in an official capacity o r

un d er color of leg al authority shall not be dismissed nor relief therein be denied on the
g round that it is ag a inst the United States

. . . .

Id. Section 704 of the APA p rovides a ri g h t to judicial review o f any “final ag e n c y a ction for which there is no other adequate remedy

in a court.” I

d. § 704.

The Park Service arg ues that the district court correctly dismissed all claims for lack of jurisdiction because the Park Service has not taken final ag ency a ction as to the disposition of the remains and objects removed from Cany on d e Chelly

. I n other words, the Park Service contends tha t the Navajo Nation seeks to interrupt the i nventory process before the Park Service has determined which tribe is culturally affiliated w i t h the remains and objects. The Navajo Nation
counters that the Park Service’s decision that N A GP R A applies to the r emains and objects was a final ag ency action because that decision trig g ered the inventory proce s s and deprived the Navajo N atio n of property rig hts the Nation claims to enjoy

under ARPA and various treaties.N A V A J O N A T I O N V

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W e hold that the d e c i s ion to apply NAGPRA to the remains and o bjects constituted fi n a l ag ency action because it was t h e c o n s u m m at i o n o f the Park Service’s decisionmaking process r e g arding which statutory scheme would apply to determine the Navaj o Nation’s property interests in the r emai n s a nd o bjects, and sig nificant leg al

c onsequences flow from the d ecision. According ly

, w e

reverse the d istrict court’s judg ment and rema n d for consideration of the Navajo Nation’s claims challeng ing the applicability

of NAGPRA.

I n Bennett v. Spear
, the Supreme Court stated two requirements for determining what constitutes a final ag ency action under the APA. See 520 U .S. 1 54, 177–78 (1997). “F irst, the action must mark the ‘ consummation’ of the
ag ency ’s decisionmaking process

. . . .” Id. (quoting Chi. & S. A ir Lines, I

nc. v. W aterman S.S. Corp.
, 333 U.S. 103, 113 (1948)). “ [ S] econd, the action must be one by which ‘rig hts

or oblig ations have been determined,’ o r from which ‘leg al
consequences will flow.’” Id. (quoting P o r t of Bos. M arine Terminal Ass’n v. Rederiaktiebolaget T ransatlantic

, 400 U.S. 62, 71 (1970)).

As to the first Bennet t r e quirement, an ag e ncy ’s determination of its jurisdiction is the consummation o f
ag ency decisionmaking r eg arding that issue. I n F airbanks North Star Borough v. U.S. A rmy Corps of Engineers
, the Army Corps o f Eng ineers d etermin e d t h at a tract of land contained “waters of the United States ” r e q uiring the landowner to r e c eive a permit from the Corps before develo ping the land. 543 F .3d 586, 589–90 (9th Cir. 2008). W e held that because t h e r e would b e “ [ n] o further ag ency decisionmaking ” as to the p resence of jurisdictional wetlands

on the property , the jur isdictional decision “mark[ ed] theN A V A J O N A T I O N V

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consummation of the ag e ncy ’s decisionmaking process as to that issue.” Id. at 593.

Similarly here, the Park Service’s leg al determination that NAGPRA’s inventory r equirements apply to the remains a nd objects from Cany on de Chelly “mark[ ed] the consummation of the a g ency ’ s decisionmaking process as to that issue.” Id. I n response to the Navajo Nation’s inquiries, the Park Service
sent the Navajo Nation an e mail notif y i n g it that I nterior’s solicitor determined the remains and objects to be subject to NAGPRA’s inventory requirements. D u r i ng an in-person meeting

, a Park Service official declined to provide a c opy o f the i nformal opinion and made clear that no additional decisionmaki n g would be forthcoming

. The Park Service refused the Navajo N ation’s reques t for a formal, written opinion, reply ing that I nterior’s solicitor’s opinion was “informally g iven” and “[ t] hat was the op i nion they g ave.” On Aug ust 9, 2011, the Navajo Nation sent a letter to the Park Service a g ain requesting formal resolution o f its requ e s t f o r return o f the items. I n a letter dated Septemb e r 7
, 2 0 1 1 a nd sig ned by the Superintendent of Cany on d e C h el ly National Monument, the Park Service issued i ts final response to the demands of the Navajo Nation.

This written decision c ited t h e prior opinion from I nterior’s solicitor and denied the Navajo Nation’s claim that all the remains and objects be returned to the Navajo Nation because they belong ed to them by virtue of when and where the remains were ex c a vated. This com m u nicated that the objects collected before N AGPRA’s effective date w ould not be returned prior to c ompletion of the NAGPRA inventory
process, which n ecessarily meant that some of the r emains and objects mig ht never be returned to the Navajo Na t ion, that the six sets disinterred after the enactment of ARPAN A V A J O N A T I O N V

. USDOI 17

would b e subjected to the inventory process rather than being immediately reinterred, a

nd that n o further ex planation would be forthcoming reg arding NAGPRA’s applicability

.

On t h i s r ecord, we have no trouble concluding that the decision to follow I n terior’s solicitor’s g uidance and continue inventory ing the remains and objects consummated the Park Service’s decisi o n m a king process as to the applicability o f NAGPRA. The dissent a r g u es that the f

i r s t Bennett requirement is not s atisfied because the Park Service is still in the process of determining c ultural a ffiliation of the remains and objects pursuant to NAGPRA, overlooking that the Navajo Nation arg ues that NAGPRA’s statutory scheme does not apply to these o b j e c ts at all. Contrary to the dissent’s f

urther assertions, we do not conclude that the Park Service’s informal request to its lawy ers fo r leg al advice
reg arding NAGPRA’s applicability was a final ag ency action. Nor do we h old that delay and ex p ense transform an interlocutory decision into f inal ag ency ac t i o n

. I t is the

a g ency ’s decision to apply NAGPRA to these r emains a nd objects that constituted a final ag ency action.

The Park Service decision also meets the second Bennett requirement because the deci sion determined the Navajo Nation’s leg al rig hts in t h e r e mains a nd objects, a

nd leg al

cons equences flow from the d ecision. A federal ag e ncy ’s decision to apply NAG P R A is the a g ency ’s leg al determination of its property rig hts in the relevant o b jects. Under NAGPRA, the Park Service can only inventory the remains and objects if it ha s “ p o ssession or control” over them. 25 U.S.C. § 3003(a). As the district court recog niz ed, N A G P R A ’ s i m p l e menting reg ulations specify that poss e s s i o n

means “having p hy sical custody

. . . w i t h a sufficient legal interest to lawfully treat the objects as p art o f its collectionN A V A J O N A T I O N V

. USDOI 18

. . . .” 43 C.F .R. § 10.2(a)(3)(I ) (emphasis added). Similarly

, c o n t rol means “having a legal interest

. . . sufficient t o lawfully permit the . . . F ederal a g ency to treat the objects a s part of its c ollection

. . . .” Id. § 10.2(a)(3)( i i ) (e m p h a sis added). The reg ulations cl arify that control may ex ist

“ whether or not the [objects] are in the phy sical cu s t o d y o f the . . . F ederal ag ency .” Id.

The Navajo Nation contends that because its 1868 treaty provides it with the “ex clusive use an d o c cupation” o f Cany on d e Chelly

, it owns the remains and objec t s t hat the Park Service hopes to inventory

. The Nation f urther arg ues that the creation of the monument and the adoption of ARPA reaffirm its ownership interest in the remains and objects a nd that the Park Service has no leg al interests sufficient to trig g er NAGPRA’s application.

I n correspondence with t h e Navajo Nation, the Park S ervice asserted that I nterior’s solicitor determined that the Park Service has “leg a l possession AND control under N A G P RA.” Thoug h the Park Service declined to provid e a copy of the so l i c itor’s opinion, its decision to a pply NAGPRA necessarily determined a t least some of the Navajo Nation’s property

rig hts in the remains and objects.

The district court ruled that the Monument A c t g ranted the Park Service possession and c o n t rol of the remains a nd objects sufficient to trig g er NAGPRA’s inventor y process, but NAGPRA applies o nly if the Park Se r v i c e has leg al possessio n or control over the remains a nd objects. See 43 C.F .R. § 10.2(a)(3)(I )–(ii). F or ex ample, if remains a nd

o b j e c ts w ere loaned to the Park Service, the reg ulat o r y scheme dictates that the Park Service would have n o l e ga l rig ht of possession f

or purposes of NAGPRA. See id.N A V A J O N A T I O N V

. USDOI 19

§ 10.2(a)(3)(I ). I t follows that the Park Service’s unex p lained decision to apply NAGPRA to the remains and objects necessarily forecloses the Nation’s arg ument th at it has complete ownership of the remains and objects pursuant to its
tre a t y r ig hts, and that the Monument A ct and ARPA only

r e a f f irm its ownership interest. F u rther, as to the six sets of remains disinterred after e nactment of A RPA, the Park Service’s decision that it had a leg al interest sufficient to lawfully permit it to treat the objects as part of its collection for purposes of NAGPRA den i e d the Nation’s claim that these sets were removed with its permission a n d on the condition that they be immediat e ly reinterred. Thus, the decis i o n t o apply NAGPRA determined the Nation’s leg al interests in these remains, and l eg al consequences flowed from th e d e c ision. Under Bennett
, this decision constituted final ag ency

action.

The dissent asserts that the Park Ser v ice’s decision to apply NAGPRA did n ot d etermine any leg al rig hts, imply ing that the reg ulatory definitions of the terms “possession” a nd

“ control” apply only to museums. Not so. B y their o w n terms, the definitions apply to federal a gencies. See 43 C.F .R. § 10.2(a)(3)(I ) (ex plaining that “a museum or Federal
agency would not b e considered to have possess ion” o f objects on loan’ (emphasis added)); id. § 10.2(a)(3)(ii) ( d e f ining c ontrol as “having a leg al interest

. . . sufficient t o lawfully permit the museum or Federal agency t o t r eat the objects as part of its c ollection” (emphasis added)). This reading is e ntirely consisten t with the Park Service’s o wn interpretation of the reg

ulations. 1 1

1 1 S e e N

A G P R A G l o s s a r

y , N a t ’ l P a r k S e r v

. , h ttp ://w w w .n p s .g ov / n ag p ra/T RA INING/GL OSSA RY.HT M (last v isited Mar. 9 , 2 0 1 6 ) (q u o tin g 4 3 C.F.R. § 1 0 .2 (a)(3 )(i)– (ii)).N A V A J O N A T I O N V

. USDOI 20

T h e definitions o f possession and control appear in a subsection of the implementing reg ulations that address w ho
must comply

. Id. § 10.2(a). After defining “ F ederal ag ency , ” “F ederal ag ency offici a l,” and “ Museum,” the reg ulation defines “possession” and “cont r o l ” i n s e p a

r a te subparag raphs. Id. § 10.2(a)(1)–(3). I n other parag r aphs of this definitions section, where the drafters wanted a subparag raph t o a pply only to t h e t erm defined in the immediately preceding
parag raph, th e d r a fters so indicated with a colon. See id. § 10.2(d)(2), ( f)(2), (g )(5). B y contrast, the definiti o n o f “museum” concludes with a p eriod. See id. § 10.2(a)(3). The only way to read this structure consistent l y w i t h the rest o f the regulation is to read “possession” and “control” to a pply
to “F eder a l ag ency ,” “F ederal ag e ncy official,” and “Museum.” See general l y , Antonin Scalia & B r y an A

. Garner, Reading L aw: The I n terpretation of L eg al T e x ts 161–65 ( 2012) (“Punctuation is a per m i ssible indicator o f

m e a n ing .”). F inally

, the dissent’s interpretation would r ead the statute as using the words “possession” and “control” to

mean lawful possession a

nd control whe n a

p p l i e d to museums but mean only physical possession and control when a pplied
to federal ag en ci es

. Nothing in the reg ulatory scheme
sug g ests this result. See id. at 170–73 (“A word or phrase is presumed to bear the same meaning throug hout a tex t.”).

The dissent also asserts that b ecause the N AGPRA inventory p rocess p rovides a method for determining ultimate ownership of remains and objects, an I ndian tribe’s property interests in t he remains and o bjects may only b e determined
at NAGPRA’s conclusion. W e read the sequence of events in NAGPRA’s statutory scheme similarly as the dissent. B ut the dissent’s position assumes away the threshold question o f whether NAGPRA’s statutory scheme app l i e s in the first
p l ace. Here, the Navajo Nation asserts a superior prope r t yN A V A J O N A T I O N V

. USDOI 21

interest in the remains and objects deriving from treaties a nd
statutes that predate NAGPRA. W e do not prejudg e whether the Nation’s attacks o n NAGPRA’s applicability a re correct,

we merely hold that the district court had jurisdictio n to consider them.

The dissent arg ues that Cong ress did not intend an ag ency to make a leg al determination of possession and control as a part of the NAGPRA process. W e ag ree. B ut bec a u s e the Navajo Nation has challeng ed t h e i nvocation o f the N AGPRA
process, it is incumbent on the court to determine NAGPRA’s applicability

. Cong ress was clear that NAGPRA’s inventory requirements only apply to “[ e] ach F ederal age n cy and e ach

museum which has possess ion or c o ntrol” over remains a nd objects. 2 5 U .S.C. § 3003( a)

. Section 10.2 o f NAGPRA’s implementing reg ulations answers the question “[ w] ho must comply w ith these reg ulations? ” b y defini n g “F ederal
ag ency ” and the terms “possession” and “ control.” 4 3 C.F .R. § 10.2(a). The Park Service’s threshold d e t e r m ination that NAGPRA applies is subject to judicial review.

The dissent separately arg ue s that the Park Service’s dec i s i o n to apply NAGPRA d o es not satisfy the second Bennett factor because the Navajo Nation could s imply choose not to participate in the NAGPRA proc es s

. 1 2 B ut

12 R elated ly

, th e d issen t arg u es th e Nav aj o Natio n ’ s claim s can b e

v in d icated at th e co n clu sio n o f NA GP RA an d th at th e Natio n w ill b e m ad e

w h o le i f th e rem ain s an d o bj ects are ev en tu ally retu rn ed

. T h i s is o n ly
p artially co rrect. As e x p l ain ed

, th e rem ain s an d o b j ects are sacred an d th eir co n tin

u ed d isin term en t i s alleg ed t o cau se u n iq u e h arm

. Fu

rth er, th e reg u latio n th e d issen t cites f o r th e p ro p o sitio n th at su

p erio r p ro p erty rig h ts

can o n ly b e asserted at th e co n clu sio n o f th e NA GP RA p ro cess, 4 3 C .F.R. § 1 0 .1 1 (e), states th at d istrict co u rts m ay h e a r “an y actio n b ro u g h t th atN A V A J O N A T I O N V

. USDOI 22

NAGPRA requires the Park Service to complete its inventories “in consultation with tribal g o v e r n ment[ s]
, ” 25 U.S.C. § 3003(b)(1)(A), and to seek information from tribes, including contact information f or traditional relig ious leaders a nd information about the “[ k] inds of objects that the [ tribe] r easonably believes to have been made ex clusively for burial purposes or to contain h uman r e m a i ns of their ancestors.” 43 C.F .R. § 10.9(b)(4)(ii )– ( i i i )

. Here, the Park Service has had several in-pers o n meeting s w ith tribal officials to attempt to determine cultural affiliation o f the remains and objects. The dissent’s sug g e stion that the Nation f o r eg o the r ig ht to consultation and attack the NAGP R A
process at its conclusion overlooks that by s itting on the sidelines, the Nation wo u l d m i ss its best opportunity to establish that the remains and objects are culturally affiliated with the Navajo if the inventory process g oes forwa r d

. The d issent also overlooks the Navajo Nation’s assertion that i t

s uffers a continuing harm as long as the remains are disinterred and not returned to their tribal lands.

The Park Service arg ues that the Navajo Nation’s c laims

ar e u n ripe and that the Navajo Nation f ailed to ex haust administrative remedies because the NAGPRA inventory
process is still ong oing

, and the P a rk Service has not y et decided which of the remains is c u l t urally affiliated with which tribe. B ut the Park Service’s arg u ment is built on the flawed premise tha t t h e Navajo Nation asserts only that the remains should be repatriated to it pursuant to NAGPRA. I n fact, the N avajo Nation c laims that NAGPRA does not a pply
at all be c au s e the N avajo Nation, and not the Park Service, has the rig h t to immediately possess and control the remains

alleg es a v io latio n o f [NA GP RA ].” It say s n o th in g ab o u t w h en su ch an actio n m ay b e b ro u g h t.N A V A J O N A T I O N V

. USDOI 23

a n d o bjects. The Navajo Nation asserts that this rig ht t o immediate possession and control flo ws from the Navajo N a t ion’s treaty rig ht to “ex clusive use and occupation” o f Cany on de Chelly

. The Navajo N ation further asserts that both the 1931 Act creating Cany on de Chelly National Monument and ARP A confirm its rig ht to immediate possession and control.

Deter m ining whether a

n a g ency ’s decision is ripe for review “ requir[ es] us to evaluate both the fitness of the issues for judicial de c i s i o n and the hardship to the parties o f withholding court consideration.” Abbott Labs. v. G ardner

, 387 U.S. 136
, 1 4 9 (1967), abrogated on other grounds by Califano v. Sanders

, 430 U.S. 99, 97 (1977). H ere, the Park Service’s continued possession of the r emains and objects

ex a c ts a unique and sig nif i c a n t hardship on the Navajo N ation. The Navajo believe that e x humation “cau s e s illness[ ,]

. . . damag es crops, n atural e c o s y stems and the environment, and disrupts local and g lobal weather patterns.” B y suing for return of the remains, the Navajo Nation seeks
to end the Park Ser v i ce’s long standing “ex ercise [ of] dominion and c ontrol over these remains and objects, a mong the most sacred of the Nation’ s p r o p er ty .” The question o f NAGPRA’s application is fit for review because it is a purely leg al q uestion applied to discrete facts and sig nificant leg al consequences flow from the decision. See id.

F u r t h e r , the Navajo Nation has ex hausted all available administrative remedies for seeking r eview of the decision to apply NAGPRA and for obtaining possession of the remains and o bjects. I n the fifteen y ears prior to fil i n g suit, the Navajo Nation repeatedly demanded an ex planation of the Secretary ’ s decision that NAGPRA applies, as well as return of the r e m ai n s and objects. Their efforts y ielded onlyN A V A J O N A T I O N V

. USDOI 24

correspondence reporting that I nterior’s solicitor o pined that NAGPRA applies to the r emains and ob j ects, and that no further opinion will be provided by the ag ency

.

B e cause both prong s o f the Bennett test are m et , we

reverse the d istrict court’s order and r emand for review of the Navajo Nation’s claims challeng ing th e a p plicability o f NAGPRA. 1 3

REVERSED and REMANDED.

I KUTA, Circuit J udg e, dissenting :

Cong r ess mandated that the N ational Park Service (Park S er v ice) follow a process for identify ing which tribes a r e entitled to r eceive the h uman remains and archeolog i c al artifacts r emoved from the Cany o n d e Chelly

. That process, codified in the Native Am e ri ca n Graves Protection a nd Repatriation A c t ( NAGPRA), p rovides for repatriation o f human remains and a ssociated artifacts to t h e i r known descendants. See 25 U .S.C. §§ 3001–3013. The Park Service is slowly implementing the NAGPRA process with respect to the human r emains and ar t i f a ct s in its possession. I ts snaillike p rog res s i s in part attributable to the ong oing resistance of the N avajo Nation, which objects to Cong res s ’ s p rocess,

13 Ou r d ecisio n m o o ts th e Nav aj o Natio n ’ s rem ain in g j u risd ictio n al
arg u m en ts. W e n eed n o t decid e w h eth er th e Park Serv ice “ u n law f u lly

w ith h eld ” ag en cy actio n w ith in t h e m ean in g o f 5 U.S.C. § 70 6 (1 ). No r d o

w e d ecid e w

h eth er Co n g ress w aiv ed so v ereig n im m u n ity as to n o n

- A P A claim s ch allen g in g i n t erm ed iate ag en cy actio n s. S ee Gro s Ven t

re Trib e v. Un ited S ta tes , 4 6 9 F.3 d 8 0 1, 8 0 9 (9 th Cir. 2 0 0 6 ).N A V A J O N A T I O N V

. USDOI 25

and has filed sui t a ga i nst the Park Service for an immediate declaration t h a t it owns all the human remains a nd artifacts that were removed from the Cany on. Althoug h the Navajo Nation may be frustrated, a federal court cannot hear such an action unless the United States has waived its sovere i g n immunity under § 7 04 of the Administrative Procedure A c t (APA), 1 which mak e s reviewable a “final ag ency action for which there is no other a d equate remedy in a court.” 5 U .S.C. § 704; Maj. op. at 13–14.

Despite the fact that the Park Service has not even come close to taking a final ag ency a c tion, today the majority decides to take matters into its o wn hands. I t selects v irtually
at random one of the many steps in the Park Service’s
ong oing effort and claims it constitutes a final a g ency action, Maj. op. at 16–17. B ecause this decision is contrary to both the APA and our precedents, I dissent.

I

The Park Service’s slow-motion im p l e mentation of the NAGPRA process mirrors the long history of the Cany on de Chelly

. T he Cany on has been inhabited b y humans for nearly 4,500 y ears and has been home to p ermanent settlements for about 2,000 y ears. Starting around 7 50 A.D. the Cany on became home to the ancient Pueblo, sometimes referred to a s the Anasaz i. The ancient P u e b l o remained in the Cany on until a bout 1 300, when they le f t to seek better farmlands. Their descendants, the Hopi I ndians, c ontinued to live in the Cany on u ntil about 1600. The modern Z uni and Hopi I n dians

1 B ecau se th e m a

j o rity f o cu ses o n § 7 0 4 o f th e A P A
, I d o n o t ad d ress

w h eth er th e Nav aj o Natio n co u ld m ain t ain its actio n u n d er 5 U.S.C. § 7 0 2

.N A V A J O N A T I O N V

. USDOI 26

are the d escendants of the a n cient Pu e b l o

. The Navajos a re relative newcomers, arriving at the Cany on around 1700.

The federal g overnment’s involvement in the c ollec t i on

a n d preservation of human remains and artifacts from t h e Cany on de Chelly dates b a c k to 1906, when the A n tiquities Act, 54 U.S.C. § 320302 (1906), authoriz ed federal ag encies
to issue permits for the ex cavation and collection o f archaeolog ical artifacts so long a s they were p re s e r ved in public museums. Under the a u t hority of this act, the Park Service removed a n d preserved some 297 sets o f h u m a n remains from the Cany on d e Chelly

. I n 1979, t h e Archaeolog ical Resources Protection Act (ARPA), 16 U .S.C. §§ 470aa–470mm (1979), added new p ermit requirements, and the Park Servic e r e m o v ed an additional six sets o f remains p ursuant to a federal permit. I n all, the Park Service removed 303 sets o f remains from the Cany on before NAGPRA was enacted in 1 990. The Park Service p reserved all 3 03 sets of remains at the W e ster n Archaeolog y Conservation Center in Tucson, Ariz ona.

I t was not u n t i l 1990 that Cong ress enacted NAGPRA, which “ provides a f

ramework for establishing ownership a nd control of (1) newly discovered Native American remains a nd funerary obj e c t s (collectively ‘cultural items’) a nd (2) cultural items already

held by c ertain federally funded museums and educati o n a l institutions.” W hite v

. Univ. of Cal.

, 765 F .3d 1010, 1016 (9th Cir. 2 014) (citing 25 U .S.C. § § 3001–3013);

see also 43 C

. F. R. § 10.1. W ith respect to pre-ex isting

co l l e c tions of human remains and a rtifacts, N AGPRA requires federal ag encies and museums with “posses s i on o r

con t r o l o ver [ such] holding s o r collections” to “compile an inventory ” of the items a n d “ i d entify the g eog raphical a nd cultural a ffiliation of such item[ s] ” where possible. 25 U .S.C.N A V A J O N A T I O N V

. USDOI 27

§ 3003(a). O nce the federal ag e ncy or museum has identified the cultural affiliation of the object, it must notify the affected tribes and publish a public n otice in the F ederal Reg ister. Id

. § 3003(d).

After the cultural affiliation process is complete, Native American human remains and a ssociated a rtifacts must be

ex p editiously repatriated to “a known lineal descendant of the Native American” or of the affected tribe, upon r e q u est o f that descendant or tribe. Id

. § 3 0 0 5(a)(1). O ther cultural artifacts may be returned to individuals or tribes that “owned

or c o n t r o l led” the items. Id

. § 3 005(a)(5). An ag e ncy may retain artifacts only if it has the “rig ht of p o s s e ssion,” meaning that the items were “obta ined with full knowledg e and consent o f the n ex t of kin or the official g overning body ” of the relevant tribe. Id . §§ 3001(13), 3005(c).

The reg ula t i o ns provide a robust dispute resolution
process to address disag r eements about the implementation of NAGPRA or the disposition o f cultural artif ac t s

. A federal ag ency ’s “final denial of a requ e s t

. . . for the repatriation or disposition of human r emains [and cultural objects] broug ht under, a

nd in compliance with [ N A GPRA] constitutes a final ag e ncy action under the Administrative Procedure A ct (5 U

. S

. C. 704).” 43 C.F .R. § 10.1(b)(3). W h en there a

re multiple requests for r epatriation, and the competi n g claimants cannot r esolve their dispute throug h informal neg oti a t i o ns, they may bring an action in district
court. I d

. §§ 10.10(c)(2), 10.11(e )

, 10.17. F u rther, a party claiming leg a l p roperty rig hts to the human remains o r artifacts that supersede NAGPRA can vindicate those c laims in court. Id . § 10.11(e)(3).N A V A J O N A T I O N V

. USDOI 28

As mandated by NAGPRA, the Park Service star t ed the inventory process for a l l 3 03 sets of remains in the mid1990s. Pursuant t o § 3003(a), the Park Service b eg an consulting with the Navajo Nation, H opi, and Z uni reg arding
t he cultural affiliation of the remains. 25 U

. S

. C

. § 3003(b)(1)(A). B y 1996 t h e P a rk Service had compiled a draft inventory , which it shared with the participating tribes. The draf t i n v e n tory identified some of the remains a s belong ing to ancestral Puebloans. Under NAGPRA
, s u c h a finding would g enerally require the Park Service to return the remains to the Hopi and Z uni Tribes

, t h e known lineal descendants of the Puebloans, upon their request. I d

. § 3005(a).

After the Park Service circulated the draft inventory

, the Navajo N ation objected to the N AGPRA process and claimed that all “human r emains and funerary obje cts” found in the Cany on de Chelly are “property o f the N a vajo Nation” b y virtue of the Navajo’s land o w nership. The Park Service stated it would respond to “any requests f o r r epatriation in strict accordance with the NAGPRA.” This response did not satisfy the Navajo Nation. F a ced wi t h t he Navajo Nation’s resistance, the Park Service put the inventory process on hold.

I n 2010, the Park Service asked lawy e rs at the Division o f Parks and W ildlife and Division of I ndian Affairs for advice. The Par k Service’s lawy ers informally confirmed that for purposes of N AGPRA, the Park Service had possession and control of the items that had been removed from the Cany on de Chelly and that these archeolog ical resources w e r e not

ex e mpt from NAGPRA’s repatriation procedures. The refore, according to the lawy ers, the Park Service w as b ound to comply with the procedure set forth in the statute a nd
reg ulations. This advice was provided informally ; the ParkN A V A J O N A T I O N V

. USDOI 29

S ervice later ex plained that it takes at least three y ears t o obtain an official le ga l o p i n ion. I n J une 2011, the Park Service informed the Navajo Nation about the informal ad v i c e o f its lawy ers and its intention to move forward with the NAGPRA process.

Two months later, the Navajo Nation sent a fo rmal demand letter to the Park Service and threatened to sue unless the Park Service turned over all human remains and artifacts
to the Navajo Nation immed i a t el y

. I n its response on September 7, 2011, the Park S e r v i ce stated that its position remained that it w as r equired by law t o c o m p lete the NAGPR A process. I t hoped that the Navajo Nation would develop an ag r eement with the H op i and Z u n i Pueblo tribes

so that they “would have more consistent input into the [ Park Service’s] f

inal decision” reg arding repatriation o f the remains

. The letter also stated the Park Service’s hope that the Navajo Nation w ould not eng ag e in litig ation, which would cause f

urther delay s. The Park S e r vice concluded b y stating that it continued “to believe that we can work throug h

our differences in a cooperative and c ollaborative manner.” The Navajo Nation then initiated this lawsuit.

I I

A review of the applicable law makes clear that no event in the Park Service’s implementation o f NAGPRA to date constituted a final ag ency action.

To be final for purposes of § 704, an ag ency action must satisfy two r equirements. F irst, the ag e ncy action “must mark the ‘consummation’ of the ag ency ’s decisionmaking process

. . . it must not be of a merely tentative or interlocutory
nature. ” Bennett v. Spear
, 520 U.S. 154, 177–78 (1997)N A V A J O N A T I O N V

. USDOI 30

(internal citation omitted). Second, “the action must be o ne by which rig hts or oblig ations h ave b een determined, or from

w h i ch leg al consequences will flow.” Id

. at 178 (inter n al quotations omitted). The elements of b oth Bennett p rong s have been clearly

delineated.

F or an action to “mark the consummation o f the ag e ncy ’s decisionmaking process” under the first Bennett prong , there
must be a n e s tablished “ formal procedure,” Fairbanks N. Star Borough v. U.S. Army Corps of E n g’rs
, 543 F .3d 586, 592–93 (9th Cir. 2008), in which the ag ency “evaluate[ s] the merits of [ the issue] to arrive a t a reasoned, deliberate decision,” see ONRC Action v

. Bureau of Land Management
, 1 5 0 F .3d 1132, 1136 (9th Cir. 1998). A final decision mu s t establish a

n official position that is “considered, definite a nd firm,” F airbanks

, 543 F .3d a t 593, and constitutes the
ag ency ’s “last word on the matter,” Or. Nat. Desert Ass’n v. U.S. Forest Serv.
, 465 F .3d 977, 984 (9th Cir. 2006). A federal ag ency ’s informal r ecommendati o n or assessment is
not a f inal ag e ncy action. See City of San Diego v. W hitman

, 242 F .3d 1097, 1101–02 (9th Cir. 2001); Aminoil U.S.A., Inc.

v. Cal. State W

ater R es. Control Bd.

, 674 F .2d 1 2 27, 1231 (9th Cir. 1982). Nor is an age n c y ’ s notice of its plans to make a decision in the future. See Gen. A tomics v. U. S. Nu c lear R egulatory Comm’n
, 75 F .3d 536, 540 (9th Cir. 1996); Ukiah Valley Med. Ctr. v. FTC
, 911 F .2d 261, 263–64 (9th Cir. 1990). As a practical matter, this means t h a t f i n al
ag ency decision s a

re virtually alway s written and g enerally published. S

ee, e.g. , Sackett v. E

PA
, 132 S. Ct. 1367, 1370–72 (2012) (formal, written EPA compliance order); Or. Nat

. Desert A ss’n
, 465 F .3d at 979–80 (written annual operating instructions, which functioned as a g r az ing permit, issued to F orest Service permit holders); Bennett
, 520 U .S. atN A V A J O N A T I O N V

. USDOI 31

177–78 (written B iolog ical Opinion provided by the F ish a nd W ildlife Service).

To satisfy the second Bennett prong , an ag ency ’s decision
must h ave the force and e f f e c t of law and be binding on the plaintiff. The decision must require the plaintiff t o do o r forbear f rom some action, s ee Fairbanks

, 543 F .3d at 593, such that the plaintiff’s only choice is whether to comply with

or defy a lega l r eq uirement, see FTC v

. Standard Oil Co. of Cal.

, 449 U. S

. 2 3 2
, 239–40 (1980). A n ex pression of the
ag ency ’s view reg arding what the law requires is not enoug h, Fairbanks

, 543 F .3d at 5 94, nor is a decision that a statute applies to an activity or indivi d u al, see Hale v. Norton
, 476 F .3d 694
, 6 97 (9th Cir. 2007) (holding that a Park Service decision that landowners were subject to p ermit requirements was not a final ag ency action u n d e r Bennett ); Hecla Mining Co. v. EPA
, 12 F .3d 1 6 4
, 165–66 (9th Cir. 1993) (holding that the decision to include a river a n d m ine

on the lists subjecting them to permit requirements “ is not the final ag ency action necessary to state a cause of a ction under § 704 of the APA”).

F urther, the ag e ncy ’s d e ci s ion must have leg al and not merely practical consequenc e s

. I t is well established that
ag ency actio n s s ubjecting the plaintiff to a “g reater risk o f i n c reased fines,” an “onerous administrative maz e ,” or f u rther
ag ency p roceeding s are not final, as these are practical effects, n o t leg al consequences. F a irbanks

, 5 43 F .3d at 595–96. E v e n an ag ency decision that causes immediate f i n a n c i a l i m p a c t s o r t r i g g e r s p r o f o u n d e c o n o m i c consequences is not final under the second Bennett prong , a s these too a

re merely practical effects. S e e i d

. Rather, an ag ency ’s d ecision is final if it has tang ible leg al consequencesN A V A J O N A T I O N V

. USDOI 32

or otherwise alters the leg al r elationship between the parties. Id. at 594.

I I I

The Park Service’s continuation of th e N A GPRA inventory process meets n either of the Bennett prong s and so is not a final ag ency

action.

First, there has been no “consummation” of a n y decisionmaking process. The majority asserts that “the [ Park Service’s] decisio n to apply NAGPRA to these remains a nd objects

. . . c onstituted a final ag ency action.” Maj. op. at 17. B ut the Park Service decided that NAGPRA was applicable
to its 3 03 sets o f rem a i ns two decades ag o, when it commenced the N AGPRA process. The Park Service’s long

a go d ecision to comply with NAGPRA did not mark t h e “consummation” of any decisionmaking p rocess, but rather its beg inning

. See Hale

, 4 76 F .3d at 697; Hecla Mining Co.
, 12 F .3d at 165–66 (holding that an ag ency ’s decision to initiate reg u latory proceeding s does not constitute a final
ag ency action because it is “merely preliminary ”).

Nor d id the Park Service’s 2010 request to its lawy ers for

c o n f irmation that NAGPRA applied constitute a fina l determination of the Park Service’s jurisd i c tion. The i n formal request occurred some 15 y ears after the P a r k Service beg a

n apply ing NAGPRA
, and merely represented the continuation of the NAGPRA process. See O NRC Action
, 150 F .3d a t 1136. I n deed, if a n ag ency is deemed to take a “final ag ency action” e very time it asks its la w y e r s whether it i s f o l l owing the law, a g encies will either be subject to challeng e reg a

rdi n g e v e r y i n t e r n al, interlocutory decision—or will have to b a n i sh g o vernment lawy ers from everyN A V A J O N A T I O N V

. USDOI 33

g overnm e n t b uilding

. The Supreme Court rejected such a result in Bennett
, ho lding that it was “loathe” to p ermit review of every pro c e dural step taken by an ag ency , especially those “that had not y et resulted in a f i nal dis p o s ition of the matter at issue.” 520 U.S. at 174. L ikewise, the Park Servic e ’ s S e ptember 2011 letter to the Navajo Nation merel y r e i terated that “[ t] he position of the [ Park Ser v i ce] and the advice of our solicitors

. . . remains that we are required by law to comple t e the N AGPRA process.” (emphasis added). W hile the majority c haracteriz e s this letter as a “final response to the demands o f the Navajo Nation,” Maj. op at 16
, n o t h i n g in the letter sug g e sts it is
any thing more than another r esponse in the ong oing dialog ue with the Navajo Nation.

I n short, n o c ase identified b y t h e Navajo Nation or the majority comes close to sug g esting that an ag ency ’s decision
to stay the course, bolstered b y informal advice from counsel,

c o n s t i t u t e s t h e “ c o n s u m m a t i o n o f t h e a g e n c y’ s decisionmaking process.” 2 There is nothing in the record resembling the formal B iolog ical Opinion at issue in Bennett
, 520 U.S. at 177, or the written gr a z i n g permit addressed in ONDA
, 4 65 F .3d at 980. There is thus no support fo r the majority ’s claim that the Park Service’s decision to continue with the NAGPRA process after obtaining its lawy ers’ advice

m a r k e d t h e c o n s u m m a t i o n o f t he Park Servic e ’s

2 T h e Nav aj o Natio n

arg u es th at Bo n n ich sen v. Un ited Sta tes is su ch a

case. 3 6 7 F .3 d 8 6 4 (9 th Cir. 2 0 0 4 ). Its relian ce is m isp l aced b ecau s e th at

o p in io n did n o t ad d ress w h eth er th e d ec i s i o n to ap p ly NA GP RA to

rem ain s th at w ere p o ssib ly n o n

- In d ian w as a f in al ag en cy actio n

. Rath er, th e issu e o f f

in ality w as d ecid ed b y th e d istrict co u rt an d n o t ap p ealed

. S ee Bo n nich s en v. U.S

. Dep t. o f th e Army
, 9 6 9 F

. Su

pp

. 6 2 8
, 6 3 7

– 3 8 (D. Ore. 1 9 97 ).N A V A J O N A T I O N V

. USDOI 34

decisionmaking pr o c es s reg a rding its jurisdiction. Maj. op. at 16–17.

The second Bennett factor is also lacking here. The Park Service’s decision to proceed with t h e NAGPRA process does not impose any o blig ation o n the Navajo Nation, and so is not “one b y which rig hts or obli ga t i o ns have been determined o r from which leg al consequence s w ill flow.” Bennett
, 520 U.S. a t 178 ( internal quotation marks a nd punctuation omitted). The N avajo Nation is not p u t t o the choice of compliance or defiance with a ny requirement, see Standard Oil

, 449 U.S. a t 239–40; rather, it is free to decline
to participa t e in the inventory process. See 25 U .S.C. § 3003(b); 43 C.F .R. § 10.9(b). 3 The Park Service’s decision
to move forward may

indeed have practical e ffects, in that it will delay vindication of t h e N avajo Nation’s alleg ed entitlement to the human remains a n d artifacts and will impose some costs if the Navajo Nation chooses to p articipate i n the NAGPRA process. And while the Navajo Nation’s decision not to participate in the NAGPRA process may also have practical effects, see Maj. op. a t 21–22, a practical burden is not a leg al burden, a n d an y ad d i tional delay a nd

ex p ense are insufficient to make an ag ency decision final

even if they turn out to b e quite substantial. See Standard Oil

, 449 U .S. at 242 (“Althoug h [the burden o f responding to ag ency enforcement] certainly is substantial, it is d ifferent in kind and leg a l effec t f r o m the burdens attending what heretofore has been considered to be final ag ency action.”).

3 W h ile NA GP RA req u ires th at th e P a r k Serv ice seek to co n su lt w i th trib al g o v ern m en ts d u rin g th e cu ltu ral af f iliatio n p ro cess, see Maj . o p. at 2 1

– 2 2 ; 2 5 U.S.C. § 3 0 0 3 (b )(1 )(A ); 4 3 C.F.R. § 1 0 .9 (b )(4 ), n o th in g in NA GP RA

req u ires th e Nav aj o Natio n to co o p erate.N A V A J O N A T I O N V

. USDOI 35

The maj o r i t y claims that the Park Service’s decision to continue with the NAGRPA inventory process “necessarily
meant that some of the re m a i n s and o bjects mig ht never be returned to the N avajo Nation,” M aj. op. at 16, a nd “necessarily forecloses t he Nation’s arg ument that it has complete ownership of the remains and objects pursuant to its treaty rig hts,” Maj. op. at 19. The m a j ority is simply mistaken. Once the NAGPRA process is complete, the Navajo Nation will be free to raise a l l t h e claims it bring s today —includ ing its challeng es to the disposition of the human remains and artifacts

, i t s claim that the Park Service breached an a g reement to re-inter six sets of remains, see M a j

. op. at 19, a

nd its arg ument that it has leg a l property rig hts in the items that supersede the NAGPRA process. See 43 C.F .R. §§ 10.10(c)(2); 10.11(e). 4

The maj o r i t y ’s theory that the Park Service made a reviewable “threshold d etermination” of its property rig hts in the remains a

nd artifacts before a

pply ing NAGPRA, Maj. op. at 19–21, is completely backwards. N either NAGPRA nor its implementing r eg ulations require a feder a l ag ency to formally and finally determine w hether it h a s “possession o r control over” Native American a rtifacts before instituting the NAGPRA process. S

ee 2 5 U.S.C. § 3003; 43 C.F .R. § 10.2.

4 T h e m aj o rity m isch aracterizes 4 3 C.F.R. § 1 0

. 1 1 (e) b y claim in g th at it “ say s n oth in g ab o u t w

h en su ch an actio n m ay b e b ro u g h t.” Maj

. o p

. at 2 1

– 2 2 n .1 2

. B y its ow

n term s , § 1 0 .1 1 ap p lies to d isp u tes “ reg ard in g th e d isp ositio n o f cu ltu

rally u n i d en tif

iab le h u m an rem ain s an d asso ciated f u n erary ob

j ects,” 4 3 C.F.R. § 1 0.1 1 (e) (em p h asis ad d ed ), th at arise af ter th e NA GP RA in v en to ry pro cess is co m p lete, id

. § 1 0 .1 1 (a) (“ T h is sectio n

. . . ap p lies to h u m an rem ain s p rev i o u sly d eterm in e d to b e Nativ e Am erican u n d er § 1 0 .9
, bu t f or w h ich n o lin eal d escen d an t o r cu l t u r a l l y

a ff iliated In d ian trib e o r Nativ e Haw aiian o rg an izatio n h as b e e n id en tif i ed .”).N A V A J O N A T I O N V

. USDOI 36

To the c o n t r ary , it is a f ederal ag ency ’s decision that NAGPRA is not applicable which is de e m e d to be a final
ag ency action subject to review. 43 C.F .R. § 10.1(b)(3). An
ag ency ’s decision that it has the requisite possession a n d control of human remains and artifacts to apply NAGPRA is
not final or reviewable until after the inventory pr o c ess is complete. S

ee id

. §§ 10.1(b)(3), 10.10(c). Nor can we infer that Cong ress i n t e n ded an ag ency to make a formal determination of its leg al rig h t s t o human remains a nd artifacts before apply

ing NAGPRA. Cong ress knew how to require a determination of ownership rig hts whe n it wanted

o ne, as NAGPRA ex pressly provides g uidance f o r determining the “ownership or co n trol” of Native American cultural items ex cavated after 1990, 25 U.S.C. § 3002(a), a nd establishes a p rocess f

or determining whether ag encies o r

museums h a ve a “rig ht of posse s s ion” to objects in their collect i o n s , id

. § 3005(c). B oth of these determinations a re made at the end of the NAGPRA p rocess, along with all the other repatriation d ecisions. Nothing i n NAGPRA requires the threshold determination that the major i ty relies on, a nd Cong r ess’s omission of such a provision indicates that it did not want any

such threshold determination to occur.

The majority n o netheless claims that § 10.2 o f the
reg ulations r e q u i r e s the Park Service to ascertain whether it h a s a leg al interest in the remains or a rtifacts before it sta r t s the NAGPRA process. Maj. op. a t 19–21. B y its t e rms, however, § 10.2 merely d efines the term “museum,” a nd provides a safe harbor for museums tha t have borrowed cultural i t ems from a third party

. 5 The applicability of this

5 Sec t i o n 1 0

. 2 an sw ers th e q u estio n “ W h o m u st co m ply w ith th ese reg u latio n s? ” as: “ f

ed eral ag en cy ,” “fe d e ral ag en cy o f f icial,” an d

“ m u seu m .” 4 3 C.F.R. § 1 0 .2 (a)(1 )– (3 ). “ Mu seu m ” is d ef i n ed as “ an yN A V A J O N A T I O N V

. USDOI 37

reg ulation is therefore irrelevant for present purposes: only a museum’s decision that it did not have p ossession or control of the i t ems in its collection would be subject to immediate le ga l r eview, id

. § 10.1(b)(3), w hile a museum’s decision to apply NAGPRA would be revie wable only at the end of the
process, see id . §§ 10.1(b)(3), 10.10(c).

Here, the r elevant question is who is e ntitled to obtain the human remains a n d artifacts currently in the Park Service’s hands, and that is the very question which NAGPRA is desig ned to a

nswer. The N avajo Nation’s clai m s t o t he human remains and artifacts are not superior on their face to the claims o f t h e Hopi and Z uni Tribes, and federal law

r equires the Park Service to proceed throug h a step-by

- st e p process for making these cultural affiliation and repatriation de terminations. The Navajo Nation’s desire to short-circuit

in stitu tio n o r State o r lo cal g o v ern m en t ag en cy (in clu d in g an y in s titu tio n

o f h ig h er learn in g ) th at h as p o ssessio n o f

, or co n t ro l o v er, h u m an rem ain s, f u n erary o b

j ects, sacred o b

j e c t s , o r o b

j ects o f cu ltu

ral p atrim o n y an d receives Fed era l fu n d

s .” Id

. § 1 0 .2 (a)(3 ) (em p h asis ad d e d )

. In th ree

su b sectio n s u n d er th e d ef

in it i o n of m

u seu m , t h e reg u latio n s d ef

in e each

o f t h e k ey term s in th at d ef i n itio n : “ p o ssessio n ,” id

. § 1 0 .2 (a)(3 )(i),

“ co n tro l,” id

. § 1 0 .2 (a)(3 )(ii), an d “ receiv es Fed eral f u n d s,” id

. § 10 .2 (a)(3 )(iii). T h e def

in itio n o f “ p o ssessio n ,” as u sed in th e def in itio n

o f “ m u seu m ,” i s “h a v in g p h y sical cu sto dy o f h u m an rem ain s, f u n erary

o b j ects, sacred o b

j ects, o r o b

j ects o f cu ltu ral p atrim o n y

w ith a su f f icien t leg al i n t erest t o law f

u lly treat th e ob

j ects as p art o f i ts co llectio n f or p u rp o s es o f th ese reg u l atio n s

. ” Id

. § 1 0 .2 (a)(3 )(i). T h e reg u latio n th en

ex p lain s th at “ [g ]en erally

, a m u seu m o r Fed eral ag en cy w o u l d n o t b e

co n sid ered to h av e p o ssessio n o f h u m an rem ain s, f u n erary o bj ects, sacred

o b j ects, o r o b

j ects o f cu ltu

ral p atrim o n y o n lo an f

ro m an o th er in d iv id u al,

m u seu m , o r F e d e r a l ag en cy .” Id

. B ecau se t h is lan g u ag e is in clu d ed as p art o f th e d ef

in itio n o f “ m

u seu m ,” it p ro v id es a saf

e h arb o r f o r m u seu m s th at d o n o t w an t to en g ag e i n th e ex p en s e o f ap p ly in g NA GP R A to item s th at are o n lo an f

ro m a th i rd p arty , b u t w o u ld f ace p en alties u n der § 1 0 .2 if th ey f ailed to im

p lem en t th e NA GP RA

p ro cess as req u ired b y

statu te.N A V A J O N A T I O N V

. USDOI 38

Cong r ess’s p lan is not sufficient to t r a n s f orm that ong oing process into a “final ag ency action.”

I V

I n sum, the Park Service is making a g ood faith effort to comply with federal law, w h i c h r e q uires it to eng ag e in a deliberate and o p e n p r ocess to d etermine w ho is entitled to the human remains and a rtifacts it c u rrently holds. The

m a jority ’ s strained attempt to detect a “final ag ency ac t i o n ” occurring at so me p oint along the way , without a d e c i s i o n m ak i n g p r o cess, a written d e c i s i o n , o r a determination that has any leg al effect on the N avajo Nation, has no support in the r ecord or in our prece d ent. B ecause t h e re is no final ag ency action reviewable under § 704
, t h e United States h as not w aived its sovereig n immunity and we lack jurisdiction to hear this appeal. According ly , I dissent.