1

Neal A. McCaleb has been appointed to serve as Assistant Secretary - Indian

Affairs, and is substituted as defendant pursuant to Fed. R. App. P. 43(c).

2

Gail A. Norton has been appointed to serve as Secretary of the Interior, and

is substituted as defendant pursuant to Fed. R. App. P. 43(c). 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

Nos. 00-2468/2471

___________

Rosebud Sioux Tribe, a federally *

recognized Indian Tribe, *

*

Plaintiff-Appellant, *

*

Sun Prairie, a Nebraska general *

partnership, *

*

Plaintiff-Appellee, *

*

v. * Appeal from the United States

* District Court for the 

Neal A. McCaleb, Assistant Secretary - * District of South Dakota

Indian Affairs, U.S. Department of *

Interior1

; Gail A. Norton, Secretary * [TO BE PUBLISHED]

of the Interior, U.S. Department of the *

Interior2

, *

*

Defendants-Appellants, *

*

Concerned Rosebud Area Citizens, a *

South Dakota non-profit corporation; *

South Dakota Peace and Justice Center, *

an unincorporated association; Prairie *

Hills Audubon Society, a South Dakota *
3

The Honorable Roger L. Wollman stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on January 31,

2002. He has been succeeded by the Honorable David R. Hansen. 

4

The Honorable David R. Hansen became Chief Judge of the United States

Court of Appeals for the Eighth Circuit on February 1, 2002. 

-2-

non-profit corporation; Humane *

Farming Association, a California *

non-profit association, *

*

Intervenors-Defendants- *

Appellants. *

___________

Submitted: February 26, 2001

 Filed: April 5, 2002 (Corrected: 04/19/02)

___________

Before WOLLMAN,3

 Chief Judge, HANSEN4 and BYE, Circuit Judges.

___________

BYE, Circuit Judge.

This case arises from the Rosebud Sioux Tribe's lease of land to Sun Prairie for

construction of a pork production facility. Because the lease covers land included

within the Rosebud Indian Reservation, the Bureau of Indian Affairs (BIA) had to

review and approve the lease. Prior to approval, and because such constitutes federal

action, the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370d,

mandated preparation of an environmental impact statement (EIS) if the project

would result in any significant environmental impact. Accordingly, BIA engaged a

contractor to prepare an Environmental Assessment (EA), to predict the likely

environmental impact. Based on the EA, BIA determined the project would cause no

significant impact which would require the preparation of an EIS. Thereafter, BIA
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issued a Finding of No Significant Impact (FONSI) and approved the lease, which the

Tribe and Sun Prairie executed. 

Almost five months later, the former Assistant Secretary for Indian Affairs at

the Department of Interior, Kevin Gover (Assistant Secretary), voided the lease

saying the FONSI was issued in violation of NEPA. Sun Prairie and the Tribe filed

suit against Gover and requested a preliminary and permanent injunction. Several

environmental and public interest groups (collectively, the Intervenors) intervened

as defendants. The district court granted a preliminary injunction and, after a hearing,

a permanent injunction. Rosebud Sioux Tribe v. Gover, 104 F. Supp. 2d 1194

(D.S.D. 2000). The defendants and the Tribe now appeal. Because we find Sun

Prairie lacks standing to pursue its claims, we vacate the district court's order granting

a permanent injunction, and remand with instructions to dismiss the complaint for

lack of jurisdiction. 

I. BACKGROUND

In the spring of 1998, the Tribe and Sun Prairie agreed to negotiate a land lease

for the development of a multi-site hog production facility on tribal trust land. The

BIA office in South Dakota arranged for the preparation of a project EA which was

finalized in August, 1998. Based upon the EA, the BIA Superintendent issued a

FONSI and authorized the Tribe to sign the lease. The lease between the Tribe and

Sun Prairie was executed on September 8, 1998, and approved by the Aberdeen Area

Director for the BIA on September 16, 1998. Construction on the project began on

or about September 21, 1998. 

The project consists of two phases. Phase I consists of three finishing sites to

be used to fatten hogs for market. Phase II consists of five sow sites and five

additional finishing sites. As of the date of the hearing on Sun Prairie's application
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for a preliminary injunction, the Tribe, to some extent, and Sun Prairie to a great

extent, had expended approximately $5,000,000 on construction.

On November 23, 1998, the intervenors in this action sued the federal

government in the United States District Court for the District of Columbia, seeking

to suspend or enjoin BIA's approval of the lease. Concerned Rosebud Area Citizens

v. Babbitt, 34 F. Supp. 2d 775 (D.D.C. 1999). On January 27, 1999, Assistant

Secretary Gover sent a letter to the Tribe voiding the lease because the FONSI did not

fully comply with NEPA. The parties to the D.C. litigation then entered into a joint

stipulation of dismissal and the case was dismissed without prejudice. 

The Tribe and Sun Prairie initiated the present action challenging the Assistant

Secretary's authority and decision to void the lease. The district court issued a

temporary restraining order on February 11, 1999, which was later extended.

Eventually, the district court granted a permanent injunction restraining defendants

from "taking any actions, other than seeking relief by appeal or other appropriate

judicial relief, which actions would have the purpose or consequence of interfering

or attempting to interfere with the construction or operation of the project that is the

subject of this action." Rosebud Sioux Tribe, 104 F. Supp. 2d at 1213-14. The

Government and Intervenors have appealed from the permanent injunction. 

Subsequent to entry of the permanent injunction, the Tribe held general tribal

elections and the composition of the tribal council changed. The reconstituted tribal

council no longer favored the hog production project, and determined the Assistant

Secretary's decision to void the lease should be upheld. The Tribe requested, and we

granted, permission to realign itself as an appellant. 
-5-

II. DISCUSSION

Sun Prairie claims the Assistant Secretary's decision to void the lease was taken

in violation of (1) 25 U.S.C. §§ 1(a), 81 & 415; (2) NEPA, and its enabling

regulations, 40 C.F.R. §§ 1500-1508; and (3) the National Historic Preservation Act

(NHPA), 16 U.S.C. §§ 470-470x-6. The Intervenors contend Sun Prairie lacks

standing to assert these claims. Specifically, the Intervenors argue the interests which

Sun Prairie seeks to protect do not fall within the zone of interests intended to be

protected or regulated by the statutes in question. The Intervenors characterize Sun

Prairie's interests as solely economic, while Sun Prairie characterizes its interests as

economic and procedural. 

"The question of standing 'involves . . . constitutional limitations on federalcourt jurisdiction.'" Bennett v. Spear, 520 U.S. 154, 162 (1997) (quoting Warth v.

Seldin, 422 U.S. 490, 498 (1975)). "To satisfy the case or controversy requirement

of Article III, which is the irreducible constitutional minimum of standing, a plaintiff

must, generally speaking, demonstrate that he has suffered injury in fact, that the

injury is fairly traceable to the actions of the defendant, and that the injury will likely

be redressed by a favorable decision." Id. (internal quotations omitted). The

Intervenors concede Sun Prairie has satisfied the constitutionally-mandated elements

of standing. 

In addition to constitutional requirements, standing also involves prudential

limits on the exercise of federal jurisdiction. Bennett, 520 U.S. at 162. Prudential

limits require a plaintiff to show the grievance arguably falls within the zone of

interests protected or regulated by the statutory provision invoked in the suit. Id. 

Sun Prairie brought its suit under the Administrative Procedure Act (APA), 5

U.S.C. §§ 701-706, which provides for judicial review of federal agency action.

Cent. S. D. Coop. Grazing Dist. v. Sec'y of the U.S. Dep't of Agric., 266 F.3d 889,
-6-

894 (8th Cir. 2001) (hereafter Grazing). The APA is a procedural statute and

provides only the "framework for judicial review of agency action." Preferred Risk

Mut. Ins. Co. v. United States, 86 F.3d 789, 792 (8th Cir. 1996) (citing Defenders of

Wildlife v. Adm'r, EPA, 882 F.2d 1294, 1303 (8th Cir. 1989)). A suit brought under

the APA must be based upon the violation of a separate statute whose violation forms

the basis for the complaint. Preferred Risk Mut. Ins. Co., 86 F.3d at 792. Thus, in

order to establish standing, a plaintiff seeking judicial review must also show the

injury complained of falls within the zone of interests sought to be protected by the

statutory provision. Bennett, 520 U.S. at 162-63.

In cases where the plaintiff is not itself the subject of the contested

regulatory action, the test denies a right of review if the plaintiff's

interests are so marginally related to or inconsistent with the purposes

implicit in the statute that it cannot reasonably be assumed that Congress

intended to permit the suit.

Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 399 (1987). 

"Whether a plaintiff's interest is arguably . . . protected . . . by the statute within the

meaning of the zone-of-interests test is to be determined not by reference to the

overall purpose of the Act in question . . . but by reference to the particular provision

of law upon which the plaintiff relies." Bennett, 520 U.S. at 175-76 (internal

quotations omitted). We therefore analyze, in turn, each of the statutory provisions

upon which Sun Prairie relies. 

A. 25 U.S.C. §§ 1(a), 81 & 415.

Sun Prairie first asserts standing under three statutes involving the relationship

between Indian tribes and the federal government. 25 U.S.C. §§ 1(a), 81 & 415.

Although Sun Prairie has interests which are threatened by the Assistant Secretary's

actions, none fall within the zone of interests sought to be protected by §§ 1(a), 81
5

Section 416 authorizes leases of land located within the San Xavier Indian

Reservation. Section 415 authorizes leases of land located within the Rosebud Sioux

Indian Reservation, among others. 

-7-

and 415. Section 1(a) merely allows the Secretary of the Interior to delegate certain

powers and duties to the Commissioner of Indian Affairs to facilitate the

administration of laws governing Indian affairs. 25 U.S.C. § 1(a). Sections 81 and

415 impose limitations on contracts and leases involving Indian lands, and are

intended to protect only Native American interests. 25 U.S.C. §§ 81 & 415; see

Schmit v. Int'l Finance Mgmt. Co., 980 F.2d 498, 498 (8th Cir. 1992) (holding § 81

was enacted solely for the benefit of Indians); W. Shoshone Bus. Council v. Babbitt,

1 F.3d 1052, 1056 (10th Cir. 1993) (holding § 81 protects Indians from improvident

and unconscionable contracts); Webster v. United States, 823 F. Supp. 1544, 1550 (D.

Mont. 1992) (holding § 415(a) insures Native American land transactions with third

parties are advantageous), aff'd, 22 F.3d 221 (9th Cir. 1994); cf. San Xavier Dev.

Auth. v. Charles, 237 F.3d 1149, 1152-53 (9th Cir. 2001) (holding § 4165 confers no

standing to non-tribal or non-government litigants). 

In support of its standing argument, Sun Prairie cites Yavapai-Prescott Indian

Tribe v. Watt, 707 F.2d 1072 (9th Cir. 1983). Sun Prairie contends Yavapai-Prescott

recognized the right of a non-Indian lessee of Indian land to assert claims under §

415. But, Yavapai-Prescott does not support Sun Prairie's claim of standing under

Title 25 of the United States Code. The case involved a tribe's attempt to terminate

unilaterally a lease which had previously been approved by the Secretary of the

Interior in accordance with § 415. Id. at 1074. The Ninth Circuit refused to

recognize the right of the tribe to terminate a previously approved lease without the

Secretary's consent. Id. at 1075. Though the non-Indian lessee was a party to the

case, the court never addressed his claims or considered whether he had standing to

assert those claims under § 415. Id. at 1074 n.4 (declining to reach and consider
-8-

lessee's previously dismissed counterclaims, because the tribe had no authority to

terminate the lease unilaterally). 

It is apparent Sun Prairie garners no support for its position from the precedent

of our sister circuit. In San Xavier, the Ninth Circuit expressly rejected a non-tribal

litigant's claim of standing: "As a lessee, and not an allottee landowner, the

Development Authority's interest is not 'arguably within the zone of interests to be

protected or regulated by the statute . . . in question.'" 237 F.3d at 1153 (quoting Ass'n

of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970)). "A non-Indian

party to a contract does not have the right to employ statutory remedies enacted to

protect Indian tribes and their members." Id. (citing Chuska Energy Co. v. Mobil

Exploration & Producing N. Am., Inc., 854 F.2d 727, 732 (5th Cir. 1988) (holding

a lessee's interest is not arguably within the zone of interests to be protected or

regulated by 25 U.S.C. § 416)). 

 

Because the statutes relied upon by Sun Prairie were enacted to protect Indian

interests, we believe it would be inconsistent to interpret them as giving legally

enforceable rights to non-tribal or non-governmental parties whose interests conflict

with the tribes' interests. Sun Prairie's asserted interests, while considerable, are not

arguably within the zone of interests to be protected or regulated by the Indian

statutes. Therefore, Sun Prairie has no standing to proceed under Title 25 of the

United States Code. 

B. NEPA

Sun Prairie next asserts standing under NEPA. The Intervenors argue Sun

Prairie lacks standing under NEPA because the interests it seeks to protect are solely

economic. We agree. 
-9-

NEPA establishes a "broad national commitment to protecting and promoting

environmental quality." Grazing, 266 F.3d at 895 (quoting Robertson v. Methow

Valley Citizens Council, 490 U.S. 332, 348 (1989)). "The purpose of NEPA is to

protect the environment, not the economic interests of those adversely affected by

agency decisions." Nev. Land Action Ass'n v. U.S. Forest Serv., 8 F.3d 713, 716 (9th

Cir. 1993). Organizations with genuine environmental interests are proper parties to

represent the public's environmental interests and challenge agency action. Churchill

Truck Lines, Inc. v. United States, 533 F.2d 411, 416 (8th Cir. 1976). Parties

motivated in part by protection of their own economic interests may also challenge

agency action as long as their environmental interests are not so insignificant that

they should be disregarded altogether. Robinson v. Knebel, 550 F.2d 422, 425 (8th

Cir. 1977). But parties motivated solely by "their own economic self-interest and

welfare, are singularly inappropriate parties to be entrusted with the responsibility of

asserting the public's environmental interest. . . ." Churchill, 533 F.2d at 416. 

The overriding purpose of NEPA is to prevent or eliminate damage to the

environment. But even purely economic interests may confer standing under NEPA

if the particular NEPA provision giving rise to the plaintiff's suit evinces a concern

for economic considerations. See Friends of the Boundary Waters Wilderness v.

Dombeck, 164 F.3d 1115, 1125-26 (8th Cir. 1999) (citing provisions of NEPA

requiring consideration of social and economic effects of agency action); Grazing,

266 F.3d at 895-96 (same). NEPA standing jurisprudence "requires us to closely

scrutinize the asserted basis for standing." Grazing, 266 F.3d at 895. We must

determine whether the asserted interest "is arguably protected by [NEPA] under the

zone-of-interests test . . . by reference to the particular provision of law upon which

the plaintiff relies, and not by reference to the overall purpose of the act in question."

Id. at 896 (citing Bennett, 520 U.S. at 175-76) (emphasis supplied). 
-10-

Sun Prairie fails to cite in its complaint or other filings any particular provision

of NEPA upon which it relies to protect its economic interests. Instead, it refers

broadly to NEPA, relying on Dombeck and Robinson to argue that plaintiffs

motivated by economic interests have standing under NEPA. 164 F.3d at 1127; 550

F.2d at 425. Dombeck and Robinson are, however, inapposite. In Dombeck, the

plaintiffs relied upon particular provisions of NEPA which required the agency to

take economic interests into consideration when preparing an EIS. 164 F.3d at 1125-

26. In this case, no EIS was ever prepared. Thus, the provisions requiring an EIS to

consider economic impact are not in play. Sun Prairie's reliance upon Robinson is

equally misplaced. The Robinson plaintiffs, in addition to citing economic interests,

claimed that agency action would impede their use of the affected land for hunting

and fishing. 550 F.2d at 425. Though motivated in part by economic interests, their

environmental concerns were sufficient to establish standing. Id. 

We believe the outcome in this case is controlled by our very recent holding

in Grazing, in which a corporation composed of individual ranchers sought review

under NEPA of an agency decision reducing the number of acres available for grazing

in the Fort Pierre National Grasslands. 266 F.3d at 892. The plaintiff claimed solely

an economic injury, and asserted standing based upon the following NEPA

provisions: 42 U.S.C. §§ 4332(2)(C), 4331(a) and 4332(2)(E). We rejected the

plaintiff's standing argument. We held that although § 4332(2)(C) requires

consideration of economic interests, the provision only applies when an EIS is

prepared. In that case, because a FONSI was issued, no EIS was prepared. We also

rejected the plaintiff's claim of standing based upon § 4332(2)(E). "Section

4332(2)(E) [requires] federal agencies to consider environmentally sound alternatives

to proposed actions without reference to the human environment and, thus, to

economic interests." Id. at 896. Finally, we held § 4331(a) was merely a broad policy

statement, and did not provide a basis for plaintiff's standing. "Regardless of that

overall broad policy, we must look to the specific provision under which the Grazing
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District raised its NEPA claim." Id. (citing Bennett, 520 U.S. at 175). Like Grazing,

this case involves the preparation of an EA and issuance of a FONSI. No EIS was

prepared. Consequently, Sun Prairie's economic interests were never considered and

do not fall within NEPA's zone of interests.

 

Our efforts to determine whether Sun Prairie has standing to assert its NEPA

claim are hampered by its failure to reference the particular provisions of NEPA upon

which it relies. Our review of NEPA has failed to uncover any provisions, aside from

those governing preparation of an EIS, which would support a claim motivated by

purely economic interests. Further, Sun Prairie has not asserted any environmental

interest which would otherwise bring its claim within NEPA's zone of interests.

Therefore, Sun Prairie does not have standing to bring its claim under NEPA. 

C. NHPA

Sun Prairie also claims standing under NHPA. NHPA was enacted to

"encourage the public and private preservation and utilization of all usable elements

of the Nation's historic built environment." 16 U.S.C. § 470-1(5). Congress believed

"the historical and cultural foundations of the Nation should be preserved as a living

part of our community life and development in order to give a sense of orientation to

the American people." 16 U.S.C. § 470(b)(2). Sun Prairie makes no attempt to

demonstrate how its economic interests fall within the zone of interests protected or

regulated by NHPA. Nor does Sun Prairie even attempt to show how the agency

action implicates NHPA. Indeed, the record reflects the Assistant Secretary's decision

to void the lease was based upon a failure to comply with the mandates of NEPA, not

NHPA. Because we are unable to divine any basis for standing under NHPA, Sun

Prairie's NHPA claim is rejected. 
-12-

D. Procedural Interest/Injury.

In addition to economic loss, Sun Prairie argues it sustained injury to its

procedural interest because the Assistant Secretary did not follow correct procedures

when he reconsidered the earlier agency decision and voided the lease. Sun Prairie

contends its procedural injury satisfies the requirements of prudential standing

because its procedural interest falls within the zone of interests sought to be protected

by Title 25 of the United States Code, NEPA and NHPA. 

Injury to a procedural interest may satisfy the constitutional requirements of

standing. Lujan v. Defenders of Wildlife, 504 U.S. 553, 571-73 n.7 (1992). "The

person who has been accorded a procedural right to protect his concrete interests can

assert that right without meeting all the normal standards for redressability and

immediacy." Id. We assume, without deciding, that Sun Prairie has established

procedural standing. Procedural standing, however, only affects the showing a

plaintiff must make to establish the elements of constitutional standing. Id. While

procedural standing can substitute for constitutional standing, it does nothing to

satisfy prudential standing. Thus, Sun Prairie must still show that its concrete

interests, which underlie the procedural right, fall within the zone of interests the

statutes are designed to protect. Douglas County v. Babbitt, 48 F.3d 1495, 1500 (9th

Cir. 1995). As we have already determined above, Sun Prairie's economic interests,

while considerable, do not fall within the zone of interests intended to be protected

by the statutes upon which it relies. Accordingly, its allegation of procedural injury

does not provide the necessary basis to establish prudential standing. 
-13-

III. CONCLUSION

The order of the district court granting a permanent injunction is vacated. The

case is remanded to the district court with instructions to dismiss the complaint for

lack of jurisdiction. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.