FILED United States Court of Appeals Tenth Circuit 

### October 4, 2019 Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

CADDO NATION OF OKLAHOMA, Plaintiff - Appellant, No. 18-6142 v. (D.C. No. 5:16-CV-00559-HE) WICHITA AND AFFILIATED TRIBES; TERRI PARTON, in her official capacity as Tribal President of Wichita and Affiliated Tribes; JESSE E. JONES, in his official capacity as Vice President of the Wichita and Affiliated Tribes; MYLES STEPHENSON, JR., in his official capacity as Secretary of the Wichita and Affiliated Tribes; SHIRLEY DAVILA, in her official capacity as Committee Member of the Wichita and Affiliated Tribes; VANESSA VANCE, in her official capacity as Treasurer of the Wichita and Affiliated Tribes; NAHUSEAH MANDUJANO, in her official capacity as Committee Member of the Wichita and Affiliated Tribes; MATT ROBERSON, in his official capacity as Committee Member of the Wichita and Affiliated Tribes, Defendants - Appellees. W.D. Okla.

ORDER AND JUDGMENT *

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral esto ppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.Before MATHESON , MURPHY , and EID , Circuit Judges.

I. INTRODUCTION Caddo Nation of Oklahoma (“Caddo Nation”) brought suit against Wichita and Affiliated Tribes (“Wichita Tribe”), asserting Wichita Trib e violated the National Environmental Policy Act (“NEPA”) and the National His toric Preservation Act (“NHPA”) during the process of planning to bui ld a Tribal History Center funded by the Department of Housing and Urban De velopment (“HUD”). See Caddo Nation of Okla. v. Wichita & Affiliated Tribes , 877 F.3d 1171, 1173-74 (10th Cir. 2017). 1 Caddo Nation appealed to this court after the district court denied a temporary restraining order preventing continuing construction of the History Center. Id. at 1175. This court held it lacked jurisdiction because construction of the History Center was completed during the pendency of the appeal. Id. at 1177-78. “[T]he relief Caddo Nation requested from the district court—a temporary restraining order enjoiningconstruction— [was] now moot.” Id. at 1172. We recognized, however, the possibilityCaddo Nation might have viable NEPA and NHPA claims “regarding the op eration of the Center or other activities on the site.” Id. at 1178. Thus, we remanded for further

1 The factual, legal, and procedural background of the dispute be tween Caddo Nation and Wichita Tribe over the History Center project is set out at length in this court’s prior opinion. Caddo Nation of Okla. v. Wichita & Affiliated Tribes , 877 F.3d 1171, 1173-76 (10th Cir. 2017). Thus, for the most part, it is not necessary to restate the background in resolvin g the instant appeal.proceedings and specifically noted “Caddo Nation may seek to am end its complaint or file a new motion for a preliminary injunction on the History Center’s use pending the outcome of its [NEPA] and [NHPA] claim s.” Id. Caddo Nation filed an amended complaint. Wichita Tribe respond ed by filing a motion to dismiss. Wichita Tribe argued all claims se t out in the amended complaint were barred by tribal sovereign immunity and, in any event, Caddo Nation’s NEPA and NHPA claims were mooted by the completion of the History Center. The district court concluded all claims set out in the amended complaint, with the exception of the NEPA and NHPA claims, were barred by tribal sovereign immunity. 2As to the NEPA and NHPA claims, the district court concluded Wichita Tribe agreed to comply with those statutory p rovisions, and thereby waived its sovereign immunity, when it accepted money f rom HUD for the History Center project. See42 U.S.C. § 5304(g); 24 C.F.R. §§ 58.2, 58.4, 58.5; see also Caddo Nation , 877 F.3d at 1174 (noting that by accepting HUD funds, Wichita Tribes agreed to comply with NEPA and NHPA). Ne vertheless,

2 Caddo Nation has not challenged the district court’s ruling in this regard. Accordingly, the only claims from the amended complaint at issu e on appeal are Caddo Nation’s NEPA and NHPA claims. This court has made clearthat the dispute between Caddo Nation, Wichita Tribe, and Delaware Natio n over ownership and/or control of the parcel upon which the History C enter was built is not relevant to Caddo Nation’s NEPA and NHPA claims. Caddo Nation , 877 F.3d at 1173 n.2. Accordingly, Caddo Nation’s Motion to Take Judici al Notice and File Supplemental Appendix, which relates solely to that questi on, is DENIED

. -3-the district court ruled that Caddo Nation’s NEPA and NHPA clai ms were mooted by the completion of the History Center. On appeal, Caddo Nation asserts the district court erred in con cluding its NEPA and NHPA claims are moot. Wichita Tribe contests that ass ertion and, as an alternate basis for affirming the district court’s order of dismissal, contends the claims are barred by tribal sovereign immunity. The district c ourt correctly ruled that Caddo Nation’s NEPA and NHPA claims are not barred by sove reign immunity. 3 The district court was also correct in concluding that most a spects of

3 Wichita Tribe raises various other matters in its response brie f in an effort to offer alternative rationales for affirming the district court’s dismissal of the amended complaint. None of these matters is worthy of an exten ded analysis. The assertion Caddo Nation’s NEPA and NHPA claims are not prope rly brought under the Administrative Procedure Act (“APA”) clearly lacks me rit. “[A] plaintiff seeking judicial review pursuant to the APA must (i) identify some final agency action and (ii) demonstrate that its claims fall within the zone of interests protected by the statute forming the basis of its claims.” Catron Cty. Bd. of Comm’rs v. U.S. Fish & Wildlife Serv. , 75 F.3d 1429, 1434 (10th Cir. 1996) (quotation omitted). Wichita Tribe has never contested that th e Finding of No Significant Impact (“FONSI”) in its Environmental Assessment (“ EA”) satisfies the requirement of final agency action. Furthermore, given that the instant dispute centers around the possibility the construction site is a burial ground for members of the Caddo Nation, Caddo Nation , 877 F.3d at 1175, the claims “fall within the zone of interests protected by” NHPA and NEPA. In any event, this court has already recognized that, at the very least, Caddo Nat ion’s NEPA claim was brought under the APA. Id. at 1175 n.4. To the extent Wichita Tribe is asserting Caddo Nation did not exhaust its administrative remed ies, such an argument is not adequately briefed. Wichita Tribe vaguely asse rts Caddo Nation “could have filed timely administrative appeals of the Wichita Tribe’s and HUD’s decisions regarding the Project.” Appellees’ Br. at 39. As th e Supreme Court has made clear, however, administrative exhaustion is entirely depe ndent on statutory and regulatory requirements. Darby v. Cisneros , 509 U.S. 137, 153-54 (1993). (continued...) -4-Caddo Nation’s NEPA and NHPA claims are moot. Those claims are moot as they relate to the 4000 square foot museum, the traditional gra ss house, and the grass arbor. There is no indication in the record, however, th at the ceremonial dance grounds, a portion of the History Center project specific ally included in Wichita Tribe’s EA, has been completed. Thus, on the current r ecord, Caddo Nation’s NEPA and NHPA claims are not moot as to that narrow as pect of the History Center project. Accordingly, exercising jurisdiction p ursuant to 28 U.S.C. § 1291, this court affirms in part , reverses in part , and remands to the district court for further proceeding consistent with this opin ion.
II. ANALYSIS Because a ruling in its favor on the matter would fully resolve the appeal, this court first takes up Wichita Tribe’s assertion that Caddo Nation’s APA-based NEPA and NHPA claims are barred by tribal sovereign immunity. See Miner Elec., Inc. v. Muscogee (Creek) Nation , 505 F.3d 1007, 1009 (10th Cir. 2007) (holding that tribal sovereign immunity implicates subject matt er jurisdiction).

3 (...continued) Absent any indication of what actions Caddo Nation failed to un dertake that are required by statute or regulation, there is nothing to indicate Caddo Nation’s NEPA and NHPA claims are unexhausted. See id. Finally, the remaining matters set out in Wichita Tribe’s appellate brief can only reasonably be construed as relevant if this court should conclude the amended complaint do es not state APAbased NEPA and NHPA claims. Having concluded the amended compl aint does state such claims, and also having noted that such claims are the only ones that remain pending on appeal, see supra n.2, the remaining contentions are irrelevant. -5-The district court correctly rejected this proposition. The Hi story Center project was funded using a HUD grant. As part of the process of granti ng such funding, HUD can “delegate any of [its] functions, powers, and duties . . . as [it] may deem desirable.” 42 U.S.C. § 3535(d). “[I]n lieu of the environmental protection procedures otherwise applicable, [HUD] may under regulations pr ovide for the release of funds for particular projects to recipients of assis tance . . . who assume all of the responsibilities for environmental review, decisionm aking, and action pursuant to [NEPA], and such other provisions of law as the regulations” may specify. 42 U.S.C. § 5304(g)(1). The relevant regulations require that a grantee like Wichita Tribe comply with both NEPA and NHPA. 24 C.F.R. § § 58.1, 58.4, 58.5, 1003.605. Consistent with this scheme, HUD delegated its obligations under NEPA and NHPA to Wichita Tribe and Wichita Tribe certifie d compliance with both. 4

4 Indeed, the EA certifies as follows: The [Wichita Tribe] certifies to HUD that Terri Parton, in her capacity as President consents to accept the jurisdiction of th e Federal Courts if an action is brought to enforce responsibilit ies in relation to the environmental review process and that these responsibilities have been satisfied. HUD approval of the certification satisfies its responsibilities under NEPA and rel ated laws and authorities and allows [Wichita Tribe] to use program funds.
See42 U.S.C. §§ 5304(g)(3)(D), 5306(a) (providing together that when a grantee tribe assumes the pertinent regulatory responsibilities, it mus t “specify that the (continued...) -6-The APA generally waives the Federal Government’s immunity froma suit “seeking relief other than money damages and stating a claim th at an agency or an officer or employee thereof acted or failed to act in an offici al capacity or under color of legal authority.” 5 U.S.C. § 702. By specifically ac cepting and assuming HUD’s rights, duties, and obligations to act in conformity withNEPA and NHPA, Wichita Tribe waived its sovereign immunity for just the type o f APA-based suit

4 (...continued) certifying officer (i) consents to assume the status of a respo nsible Federal official under [NEPA or NHPA] . . . and (ii) is authorized and consents on behalf of the recipient of assistance . . . to accept the jurisdictionof the Federal courts for the purpose of enforcement of his responsibilities as such an official”). Wichita Tribe asserts, as a general matter, it is only the Exec utive Committee, not the President, that can waive Wichita Tribe’s sovereign immunity. Appellees’ Br. at 41-42. It specifically recognizes, however, that the waiverin the EA is effective, even though only signed by the President, to the sam e extent as a waiver by the federal government. Id. at 42 (“As with the federal government, however, [the waiver of sovereign immunity in the EA] would be effective—if at all—only if Caddo had complied with the requirements of the APA . Because Caddo failed to comply with the APA, the argument is meritless. ”). As noted above, however, Caddo Nation brought properly exhausted APA cla ims in its amended complaint, supra n.3, and those APA claims are the only ones that remain alive in this case, supra n.2. Thus, by its own admission, Wichita Tribe’s argument as to sovereign immunity fails. In any event, the rec ord before this court does not support the assertion that only the Executive Co mmittee has the power to waive sovereign immunity. The Wichita Governing Resol ution reserves to the Executive Committee the “power . . . to transact busines s and otherwise speak or act on behalf of the Tribes,” but later grants to the President the power of “general supervision . . . of the Executive Committee” and s tate the President “shall perform all duties appertaining to the office.” Based o n this language, we conclude the document does not preclude the President from waiv ing sovereign immunity in the manner set out in the EA. Cf. Sanderlin v. Seminole Tribe of Florida , 243 F.3d 1282, 1287 (11th Cir. 2001) (holding no waiver by of ficer when tribal charter reserved sovereign immunity waiver “pursuant to a resolution duly enacted by the Tribal Council”). -7-at issue in this case. In arguing for a contrary result, Wichi ta Tribe does not cite to any relevant precedent. Instead, it merely identifies cases indicating a wavier of tribal sovereign immunity must be clear and unequivocal. See, e.g. , Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla. , 498 U.S. 505, 509 (1991). The statutory and regulatory scheme set out above, how ever, could not be more clear: HUD can condition the provision of a grant to an In dian tribe on the tribe’s acceptance of HUD’s obligation to comply with NEPA and NHPA, an obligation enforceable via the APA. 5 U.S.C. § 702; 42 U.S.C. §§ 5304(g), 5306(a). Because HUD did so condition the grant to Wichita Tri be, and because Wichita Tribe affirmatively waived its sovereign immunity in th e certification included in the EA, this court has subject matter jurisdiction over Caddo Nation’s APA-based NEPA and NHPA claims against Wichita Nation. The district court concluded the case was moot because Wichita Tribe had completed construction of the History Center. This conclusion is only partially correct. The EA describes the project as constituting four parts: a 4000 square foot building, a grass house, a grass arbor, and a ceremonial d ance ground. The record definitively demonstrates that the building, grass house , and grass arbor are complete. 5 In its brief on appeal, Wichita Tribe asserts the “dance ground

5 In resolving this appeal, this court has taken judicial notice of the record and all filings in appeal number 16-6161, the appeal that resul ted in Caddo Nation , 877 F.3d at 1171. See Van Woudenberg v. Gibson , 211 F.3d 560, 568 (continued...) -8-aspect was abandoned after the FONSI was published.” Appellees ’ Br. at 25-26 n.15. There is nothing in the record, however, to confirm this assertion. Absent such evidence, this court cannot affirm the dismissal of the NE PA and NHPA claims on the basis that construction of the History Center pro ject has been completed. Caddo Nation asserts that even those aspects of the History Center project that are complete present a live controversy. This argument is unconvincing. It is certainly true that the mere completion of portions of the Hist ory Center project does not necessary render Caddo Nation’s APA-based NEPA and NHP A claims moot. It is for that very reason Caddo Nation remanded the matter to allow for the filing of an amended complaint focused on “the operation of the Center or other activities on the site.” 877 F.3d at 1178. The problem, however, is that Caddo Nation has not identified any aspect of the operation of the completed portions of the History Center project that implicates the inte rests advanced in NEPA and NHPA. Caddo Nation relies on Airport Neighbors Alliance, Inc. v. United States , 90 F.3d 426 (10th Cir. 1996), to support its contention this co urt could still award relief. This reliance is misplaced. Airport Neighbors is a NEPA case in which

5 (...continued) (10th Cir. 2000) (“We note . . . that the court is permitted to take judicial notice of its own files and records . . . .”), abrogated on other grounds by McGregor v. Gibson , 248 F.3d 946 (10th Cir. 2001). -9-this court found relief might be available to address environme ntal issues caused by use of a new airport runway. Id. at 428-29. Caddo Nation did not identify in its amended complaint any environmental issues relating to the operation of the History Center. Airport Neighbors makes clear that claims related to construction are moot once construction is complete: [A]lthough the fact that the upgrade of Runway 3–21 has been completed renders moot any claim relating to the construction of the runway, we still may consider whether Respondents complied with NEPA by adequately addressing the environmental impacts resulti ng from the enhanced use of the runway.
Id. at 429. In its amended complaint, Caddo Nation sought a declaration that Wichita Tribe violated NEPA and its implementing regulations an d NHPA, yet alleged no environmental (or other) concerns that would result from continued operations at the History Center. That being the case, Caddo N ation’s APA-based NEPA and NHPA claims are moot to the extent construction is complete. Caddo
Nation , 877 F.3d at 1176-77 (“‘Ordinarily, a NEPA claim no longer pre sents a live controversy when the proposed action has been completed an d when no effective relief is available.’” (quoting Airport Neighbors , 90 F.3d at 428)). 6

6 To the extent Caddo Nation asserts this court can grant it a su fficient remedy by directing the parties to discuss demolishing those po rtions of the History Center project that have been completed, this court con curs with the district court: such a suggestion does not constitute a “remedy” or “other reli ef” within the meaning of the mootness inquiry. If directing the p arties (continued...) -10-Because Caddo Nation has not sought to enjoin operations at the History Center or any other specific, tangible activity, there is no live case or controversy as to those portions of the History Center project that are complete. 7
III. CONCLUSION For those reasons set out above, all aspects of Caddo Nation’s APA-based NEPA and NHPA claims are moot, with the singular exception of the aspect of the claims relating to the ceremonial dance grounds. According ly, the district court is AFFIRMED IN PART , REVERSED IN PART , and this matter is
REMANDED to the district court for further proceeding consistent with this

6 (...continued) to a controversy to “discuss it” is “other relief,” then no dis pute would ever be moot because a court would always have that optio n available. That is plainly inconsistent with the existence andnature of the mootness doctrine. District Ct. Order of July 9, 2018, at 6-7. Instead, as Caddo Nation and Airport Neighbors make clear, NEPA and NHPA claims directed to the construction aspects of a project are moot when the project is completed.

7 This court rejects Caddo Nation’s assertion that its NEPA and N HPA claims are not moot because it has adduced credible evidence Wi chita Tribe plans to engage in further development in areas adjacent to the Histo ry Center. First, Caddo Nation has never identified any final agency action otherthan the FONSI set out in the EA. As noted above, the EA is specifically limi ted to the History Center project. Second, Wichita Tribe’s obligation to comply w ith NEPA and NHPA, and its concomitant waiver of sovereign immunity, is dire ctly tied to its receipt of a HUD grant to build the History Center. Caddo Nati on has not identified any basis to conclude any such contemplated developm ent falls within the ambit of the instant APA-based claims. -11-opinion. Given that this court has resolved this appeal after full briefing and oral argument, Wichita Nation’s Motion for Summary Disposition is DENIED as
moot. Entered for the Court
Michael R. Murphy Circuit Judge

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