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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 17, 2003 Decided June 17, 2003

No. 02-5049

CROW CREEK SIOUX TRIBE

APPELLANT

v.

LES BROWNLEE, ACTING SECRETARY OF THE ARMY, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 01cv00076)

Peter Capossela, pro hac vice, argued the cause for appellant. With him on the briefs was Marcella Burgess Giles.

Hans Walker was on the brief for amicus curiae The

Three Affiliated Tribes of the Fort Berthold Reservation on

behalf of appellant.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Lisa E. Jones, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With her on the brief

was Andrew C. Mergen.

Mark Barnett, Attorney General of the State of South

Dakota, and John P. Guhin, Deputy Attorney General, were

on the brief for appellee State of South Dakota.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge: Appellant Crow Creek Sioux

Tribe (Tribe) appeals from a district court order denying a

preliminary injunction of a transfer of lands from the Army

Corps of Engineers (Corps) to the State of South Dakota, as

required by Title VI of the Water Resources Development

Act (WRDA), Pub. L. No. 106–53, 113 Stat. 269 (1999), as

amended by Pub. L. No. 106–541, § 540, 114 Stat. 2572

(2000). The Tribe claims that this title transfer will eviscerate the Secretary of the Army’s ability to enforce federal

cultural protection statutes on the transferred lands, thus

injuring the Tribe’s rights under these statutes. Because the

WRDA explicitly provides that these federal statutes continue

to apply on the transferred lands, we dismiss the Tribe’s

challenge for lack of standing.

I. Background

Throughout the middle of the 20th century, the Corps, in

the course of implementing a federal flood control program

(known as the Pick–Sloan Missouri River Basin Program),

acquired title to large amounts of land along the upper

Missouri River in South Dakota. Some of the Pick–Sloan

lands originally belonged to the Tribe’s reservation. The

Corps is charged with administering the Pick–Sloan lands in

accord with federal environmental and cultural protection

statutes. It is undisputed that the Pick–Sloan lands contain

historic artifacts, cultural objects, and burial remains in which

the Tribe has specified rights under several such statutes.

See Native American Graves Protection and Repatriation Act

(NAGPRA), 25 U.S.C. § 3001 et seq. (2000) (providing notifi-
3

cation and inventory procedures pursuant to which Indian

cultural objects and burial remains unearthed on federal

lands shall be repatriated to the appropriate Indian Tribe);

National Historic Preservation Act (NHPA), 16 U.S.C. § 470

et seq. (2000) (providing notification and consultation procedures federal agencies must follow prior to a federal ‘‘undertaking’’ to consider the undertaking’s effect on historic properties); Archaeological Resources Protection Act (ARPA), 16

U.S.C. § 470aa et seq. (2000) (providing criteria and procedures pursuant to which a ‘‘Federal land manager’’ may issue

excavation permits for federal lands; providing for notification of Indian Tribe if permits may result in harm to Indian

cultural or religious site).

In 1999, the WRDA was enacted to restore wildlife habitat

destroyed by flooding on the Pick–Sloan lands. Under Title

VI of the WRDA, the Corps is instructed to transfer title to

portions of the Pick–Sloan lands to the State of South Dakota.

WRDA § 605(a). Initially, the Corps was to transfer certain

land and ‘‘recreation areas’’ by January 1, 2002. Id.

§ 605(a)(1)(B). All remaining lands were to be transferred

‘‘not later than 1 year after the full capitalization’’ of a trust

fund to promote wildlife habitat restoration. Id. § 605(e)(2).

Important to this case, the WRDA explicitly provides that,

‘‘notwithstanding any other provision of law,’’ the aforementioned cultural protection statutes continue to apply to transferred lands. Id. § 605(h). Moreover, the WRDA also

makes clear that nothing in the Act diminishes or affects ‘‘any

authority of the Secretary [of the Army], the Secretary of the

Interior, or the head of any other federal agency under a law

in effect on the date of enactment of this Act, including,’’

among others, the NHPA, ARPA, NAGPRA, and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et

seq. (2000). WRDA § 607(a)(6).

In November 2001, pursuant to NEPA, 42 U.S.C.

§ 4332(2)(C), the Corps released a final Environmental Impact Statement (EIS) analyzing the environmental and cultural effect of the anticipated transfer of land from the Corps to

South Dakota. The EIS considered two alternatives: (1)

Land transfer, as required by the WRDA; and (2) No action.
4

The final EIS concluded that the required land transfer

would have minimal adverse impact on environmental quality

and no adverse impact on Indian cultural resources and

historic properties. Additionally, the EIS included a description of mitigation measures that the State committed to follow

to limit or diminish any impacts of the transfer.

At the same time, the Corps reviewed the transfer pursuant to NHPA Section 106, 16 U.S.C. § 470f, which requires a

federal agency with jurisdiction over a federally approved

‘‘undertaking’’ to consider the effects of the undertaking on

properties included in, or eligible for inclusion in, the National

Register of Historic Places, and requires the agency to afford

the Advisory Council on Historic Preservation (Advisory

Council) and the State Historic Preservation Officer (SHPO)

a reasonable opportunity to comment on the undertaking.

See Nat’l Min. Ass’n v. Fowler, 324 F.3d 752, 755 (D.C. Cir.

2003). After consultation with the Advisory Council and the

SHPO, the Corps determined that the title transfer ‘‘will not

have an effect upon properties eligible for inclusion in the

National Register of Historic Places’’ because the WRDA

provides that the Corps retains authority over transferred

lands.

In response to several comments from the Advisory Council, the Corps and the State of South Dakota entered into a

Memorandum of Agreement (MOA), which explicitly provides

for continued federal enforcement of cultural protection statutes on the transferred lands. The MOA states that the

Corps ‘‘will retain, and will exercise, all authority, jurisdiction,

and powers of approval regarding’’ the NHPA, the NAGPRA,

and the ARPA that it held prior to the transfer. In light of

the MOA, on December 14, 2001, the Corps made a second

finding pursuant to NHPA Section 106, determining that the

transfer ‘‘does not constitute an undertaking and therefore

will not have an effect upon properties eligible for inclusion in

the National Register of Historic Places.’’

On December 21, 2001, the Corps issued a Record of

Decision (ROD) providing that the recreation areas would be

transferred on January 1, 2002, in accord with WRDA Section
5

605(a)(1)(B). By this time, the Tribe had filed suit in district

court to enjoin the implementation of WRDA’s title transfer

provisions. In order to allow time for briefing and argument

on the transfer issue, the district court, pursuant to agreement of the parties, ordered South Dakota not to accept title

to the recreation areas until February 8, 2002. On January 4,

2002, the Tribe amended its complaint to seek a preliminary

injunction barring the transfer.

The amended complaint underlying the motion for a preliminary injunction alleges that the WRDA is unconstitutionally vague, and that the title transfer violates NEPA, NHPA,

NAGPRA, ARPA, the Administrative Procedure Act, 5 U.S.C.

§ 701 et seq. (2000), and the WRDA itself. In its motion for

a preliminary injunction, the Tribe contends that transfer of

the land to South Dakota would irreparably harm the Tribe’s

interests in cultural artifacts and tribal heritage sites by

removing the lands from coverage under the federal cultural

protection statutes and by lessening the federal government’s

ability to enforce these statutes on the transferred lands.

On February 1, 2001, the district court denied the Tribe’s

request for a preliminary injunction, holding that the proposed title transfer was consistent with the Constitution and

federal law. The district court denied the Tribe’s motion for

a stay pending appeal; we denied the Tribe’s motion for

emergency injunctive relief. As a result, the Corps transferred title to the recreation areas to South Dakota on

February 8, 2002. The Tribe timely filed this appeal.

II. Analysis

We need not delve into the Tribe’s myriad constitutional

and statutory claims because the Tribe lacks Article III

standing to bring this action in federal court. Article III

limits federal courts’ jurisdiction to ‘‘Cases’’ and ‘‘Controversies.’’ U.S. CONST. art. III, § 2, cl. 1. Standing is one of the

essential prerequisites to jurisdiction under Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). As the

Supreme Court explained in Lujan, the ‘‘irreducible constitutional minimum of standing contains three elements’’: (1) an
6

‘‘injury in fact—an invasion of a legally protected interest

which is (a) concrete and particularized, and (b) actual or

imminent, not conjectural or hypothetical’’; (2) traceability—

that the injury is ‘‘fairly traceable to the challenged action of

the defendant, and not the result of the independent action of

some third party not before the court’’; and (3) redressability—that it is ‘‘likely, as opposed to merely speculative, that

the injury will be redressed by a favorable decision.’’ Id. at

560–61 (internal quotations and citations omitted). The Tribe

has utterly failed to establish an ‘‘actual or imminent’’ injury

in fact, and thus lacks standing. Accordingly, neither we, nor

the district court, have jurisdiction to consider the merits of

its case.

We note at the outset that, contrary to the Tribe’s suggestion, the Tribe does not have standing merely because it has

statutory rights in burial remains and cultural artifacts on the

transferred lands, or because it is affected by the Pick–Sloan

Program as a whole. Rather, to establish standing, the Tribe

must show that the transfer of these lands to South Dakota

causes it to suffer some actual or imminent injury.

The Tribe’s brief, while not entirely clear, offers two related versions of the injury it claims to suffer from the land

transfer. First, the Tribe asserts that even though the

WRDA mandates that cultural resource protection statutes

(NAGPRA, NHPA, ARPA) continue to apply on the transferred lands, the Secretary will not be able to enforce the

cultural protection statutes because those statutes apply only

to lands under federal control or jurisdiction. Consequently,

the Tribe asserts that it will be less likely to receive prompt

repatriation of burial remains and prompt notice of federal

undertakings or federally permitted excavations that may

affect cultural resources, as required by the statutes. Second, the Tribe contends that transfer of title to South Dakota

will make it practically impossible for the Secretary to enforce the cultural protection statutes, particularly because the

Secretary did not reserve easements and proprietary rights

in the Quitclaim Deeds for the transferred lands. We address

these arguments in turn.
7

The Tribe’s first argument is meritless. Of course, the

Tribe is correct insofar that the cultural protection statutes,

by their own terms, apply only to federal lands or federal

undertakings. See NAGPRA, 25 U.S.C. § 3002(a) (providing

that statute covers cultural items discovered on ‘‘Federal

lands’’); § 3003(a) (providing that ‘‘federal agenc[ies]’’ with

‘‘control’’ over Indian remains shall prepare inventory);

NHPA, 16 U.S.C. § 470f (providing that head of ‘‘Federal

agency’’ with jurisdiction over any ‘‘Federal or federally

assisted undertaking’’ must assess effect of undertaking on

historic property and consult the Advisory Council); ARPA,

16 U.S.C. § 470cc(a)-(c) (providing that ‘‘federal land manager’’ [the Secretary] administers excavation permit process for

‘‘public lands’’ and shall notify an Indian tribe if an excavation

permit might result in harm to Indian cultural or religious

site). The WRDA, however, explicitly provides that the

cultural protection laws will continue to apply to the transferred lands:

Notwithstanding any other provision of law, the following

provisions of law shall apply to land transferred under

this section:

(1) The [NHPA]TTTT

(2) The [ARPA]TTTT

(3) The [NAGPRA]TTTT

WRDA § 605(h). The only fair reading of Section 605(h) is

that these cultural protection statutes will apply on the

transferred lands notwithstanding the fact that the statutes

themselves apply only to federal lands. See Yankton Sioux

Tribe v. United States Army Corps of Eng’rs, 209 F. Supp. 2d

1008, 1018 (D.S.D. 2002) (holding that NAGPRA applies to

lands transferred to South Dakota under WRDA; granting a

preliminary injunction against Secretary for alleged NAGPRA violations on these lands). Any other interpretation

would render Section 605(h) a nullity. In effect, Section

605(h) amends the portions of the cultural protection statutes

that limit the statutes’ coverage to federal lands. Or put

another way, the transferred lands will be treated as federal

lands subject to the full force of the cultural protection
8

statutes. Thus, the transfer effects no legal change that

would lessen the protection of the Tribe’s cultural heritage

under federal law.

Furthermore, the land transfer does not alter or impede

the legal authority of the Secretary to enforce the cultural

protection statutes. The WRDA plainly states: ‘‘Nothing in

this title diminishes or affects TTT any authority of the

Secretary [of the Army], the Secretary of the Interior, or the

head of any other federal agency under a law in effect on the

date of enactment of this act, including’’ the NHPA, the

ARPA, and the NAGPRA. § 607(a)(6)(A), (B), (G). Section

607(a), then, erases any doubt that the Secretary lacks legal

authority to enforce cultural protection statutes merely because the title to the transferred land is now held by South

Dakota. Accordingly, the Tribe’s allegation that it will lose

the protection of NAGPRA, NHPA, and ARPA is without

merit. Legally, nothing changed when the land transfer

occurred, and therefore, the Tribe suffered no injury.

That leaves us with the Tribe’s second argument—that the

Secretary will be practically unable to enforce the cultural

protection statutes after the title transfer (1) because federal

control over the land will diminish as state control increases,

and (2) because the Secretary failed to reserve rights of

access under the Quitclaim Deeds to the land. The Tribe’s

claim that federal enforcement will diminish merely because

South Dakota now holds title to the land is purely speculative.

As explained above, the cultural protection statutes continue

to apply on the transferred lands, and the Secretary retains

full enforcement authority thereunder. The Tribe presents

no reason to believe that enforcement will diminish; it simply

asserts the possibility that the Secretary will be less willing

or less able to enforce federal law if the Corps no longer has

title to the property. This unsupported conjecture does not

constitute injury in fact when the WRDA itself provides that

the Secretary will have an ongoing and undiluted enforcement

role on the transferred lands. See Lujan, 504 U.S. at 560

(stating that injury must be ‘‘actual or imminent, not conjectural or hypothetical’’) (quotations omitted). Moreover, the

MOA confirms the Secretary’s intention and ability to contin-
9

ue enforcing federal cultural protection statutes on the transferred lands. See MOA, at 2 (‘‘The Corps will retain, and will

exercise, all authority, jurisdiction, and powers of approval

regarding the [NHPA], the [NAGPRA], and the [ARPA] that

it held prior to the mentioned transfer regarding activities

that take place TTT within the transferred lands.’’).

With explicit statutory enforcement authority and a supporting MOA, it is highly questionable that the Secretary

needed to reserve legally enforceable rights in the Quitclaim

Deeds. In any event, the Secretary did so. See Quitclaim

Deeds at 3 (‘‘The Grantor reserves access over, across, on,

and under the Land hereby conveyed TTT to carry out

responsibilities under Section 605(h) of Title VI’’). In addition, the title transfer was made ‘‘subject to the provisions of

Section 605(h) TTT requiring that certain specified federal

laws be applicable to the lands after transfer to the State.’’

Id. at 4. Thus, the Quitclaim Deeds are no hindrance to the

Secretary’s ability to enforce cultural protection laws.

Finally, even if the Tribe’s predicted harms constituted an

injury in fact, any lack of federal enforcement would be

traceable not to the challenged land transfer, but rather to

the Secretary’s failure to fulfill his continuing statutory duties

under the cultural protection statutes. If the Secretary

neglects his enforcement duties, the Tribe can seek relief

against the Secretary pursuant to those statutes, just as it

could prior to the transfer. Compare Yankton Sioux Tribe v.

U.S. Army Corps of Eng’rs, 209 F. Supp. 2d 1008 (D.S.D.

2002) (requiring Secretary to follow NAGPRA procedures

with respect to certain burial remains discovered on transferred lands) with Yankton Sioux Tribe v. United States

Army Corps of Eng’rs, 83 F. Supp. 2d 1047 (D.S.D. 2000)

(granting a preliminary injunction against Secretary for alleged NAGPRA violations prior to land transfer). Thus, an

order vacating the transfer would not redress any future

injury suffered by the Tribe.

In conclusion, the Tribe has not suffered an injury in fact

stemming from the transfer of lands pursuant to WRDA.

The only harms it alleges are speculative and hypothetical,
10

not actual or imminent. Therefore, the Tribe lacks Article

III standing.

III. Conclusion

For the foregoing reasons, the Tribe lacks standing to

bring this action in federal court. Consequently, we remand

the action to the district court for entry of a judgment of

dismissal for lack of subject matter jurisdiction.

So ordered.